TX
Texas House Bill HB63

Texas 2019 - 86th Regular

Texas House Bill HB63 Compare Versions

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1+86R19651 JSC-D
12 By: Moody, Collier, White, Dutton, Phelan, H.B. No. 63
23 et al.
4+ Substitute the following for H.B. No. 63:
5+ By: Collier C.S.H.B. No. 63
36
47
58 A BILL TO BE ENTITLED
69 AN ACT
7- relating to the criminal and licensing consequences of certain
8- marihuana possession and drug paraphernalia possession offenses;
9- imposing a fee.
10+ relating to the civil and criminal penalties for possession of
11+ certain small amounts of marihuana and an exception to prosecution
12+ for possession of associated drug paraphernalia; creating a
13+ criminal offense.
1014 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1115 SECTION 1. Section 481.121(b), Health and Safety Code, is
1216 amended to read as follows:
1317 (b) An offense under Subsection (a) is:
14- (1) a Class C misdemeanor if the amount of marihuana
15- possessed is one ounce or less;
16- (2) a Class B misdemeanor if the amount of marihuana
18+ (1) a Class B misdemeanor if the amount of marihuana
1719 possessed is two ounces or less but more than one ounce;
18- (3) [(2)] a Class A misdemeanor if the amount of
19- marihuana possessed is four ounces or less but more than two ounces;
20- (4) [(3)] a state jail felony if the amount of
21- marihuana possessed is five pounds or less but more than four
22- ounces;
23- (5) [(4)] a felony of the third degree if the amount of
20+ (2) a Class A misdemeanor if the amount of marihuana
21+ possessed is four ounces or less but more than two ounces;
22+ (3) a state jail felony if the amount of marihuana
23+ possessed is five pounds or less but more than four ounces;
24+ (4) a felony of the third degree if the amount of
2425 marihuana possessed is 50 pounds or less but more than 5 pounds;
25- (6) [(5)] a felony of the second degree if the amount
26- of marihuana possessed is 2,000 pounds or less but more than 50
27- pounds; and
28- (7) [(6)] punishable by imprisonment in the Texas
29- Department of Criminal Justice for life or for a term of not more
30- than 99 years or less than 5 years, and a fine not to exceed $50,000,
31- if the amount of marihuana possessed is more than 2,000 pounds.
32- SECTION 2. Section 481.126(a), Health and Safety Code, is
26+ (5) a felony of the second degree if the amount of
27+ marihuana possessed is 2,000 pounds or less but more than 50 pounds;
28+ and
29+ (6) punishable by imprisonment in the Texas Department
30+ of Criminal Justice for life or for a term of not more than 99 years
31+ or less than 5 years, and a fine not to exceed $50,000, if the amount
32+ of marihuana possessed is more than 2,000 pounds.
33+ SECTION 2. Subchapter D, Chapter 481, Health and Safety
34+ Code, is amended by adding Sections 481.1211 and 481.1212 to read as
35+ follows:
36+ Sec. 481.1211. CIVIL PENALTY: POSSESSION OF SMALL AMOUNT OF
37+ MARIHUANA. (a) Notwithstanding Section 481.121 and except as
38+ otherwise provided by Section 481.1212, a person who knowingly or
39+ intentionally possesses a usable quantity of marihuana in an amount
40+ that is one ounce or less does not commit an offense but is liable to
41+ the state for a civil penalty not to exceed $250.
42+ (b) The imposition of a civil penalty under this section is
43+ not a conviction and may not be considered a conviction for any
44+ purpose.
45+ Sec. 481.1212. OFFENSE: SUBSEQUENT POSSESSION OF SMALL
46+ AMOUNT OF MARIHUANA. (a) A person commits an offense if the
47+ person:
48+ (1) knowingly or intentionally possesses a usable
49+ quantity of marihuana in an amount that is one ounce or less; and
50+ (2) has previously been assessed a civil penalty two
51+ times under Section 481.1211.
52+ (b) An offense under this section is a Class C misdemeanor.
53+ SECTION 3. Section 481.125, Health and Safety Code, is
54+ amended by adding Subsection (g) to read as follows:
55+ (g) It is a defense to prosecution under this section that
56+ drug paraphernalia was knowingly or intentionally used, possessed,
57+ or delivered solely in furtherance of a violation of Section
58+ 481.1211 or an offense under Section 481.1212.
59+ SECTION 4. Subchapter B, Chapter 45, Code of Criminal
60+ Procedure, is amended by adding Article 45.062 to read as follows:
61+ Art. 45.062. PROCEEDINGS FOR CERTAIN MARIHUANA POSSESSION
62+ VIOLATIONS AND OFFENSES. (a) A peace officer may not make an
63+ arrest solely because of a violation of Section 481.1211, Health
64+ and Safety Code, regardless of whether the person may be subject to
65+ prosecution under Section 481.1212 of that code. A peace officer
66+ may issue to a person a citation that contains written notice of the
67+ time and place the person must appear before a justice court, the
68+ name and address of the person charged, and the violation charged.
69+ The citation must notify the person that the person may be subject
70+ to prosecution for a Class C misdemeanor under Section 481.1212,
71+ Health and Safety Code, if the person has previously been assessed a
72+ civil penalty two times under Section 481.1211, Health and Safety
73+ Code.
74+ (b) The district or county attorney of the county in which
75+ the conduct described by Section 481.1211, Health and Safety Code,
76+ is alleged to have occurred may:
77+ (1) bring an action in the justice court of the county
78+ to collect the civil penalty of a person who receives a citation
79+ under this article; or
80+ (2) charge the person with an offense under Section
81+ 481.1212, Health and Safety Code, if the person has previously been
82+ assessed a civil penalty two times under Section 481.1211 of that
83+ code.
84+ (c) Except as otherwise provided by this article, a civil
85+ action under this article for a violation of Section 481.1211,
86+ Health and Safety Code, shall be conducted in the manner provided by
87+ this chapter as if an offense were charged.
88+ (d) The court may not:
89+ (1) issue an arrest warrant under Article 45.014 for a
90+ violation of Section 481.1211, Health and Safety Code, or an
91+ offense under Section 481.1212 of that code; or
92+ (2) require the person who violates Section 481.1211,
93+ Health and Safety Code, or commits an offense under Section
94+ 481.1212 of that code, to give bail under Article 45.016.
95+ (e) A citation issued under this article is considered to be
96+ a sufficient complaint for purposes of Articles 45.018 and 45.019
97+ if the citation is filed with the court by a district or county
98+ attorney.
99+ (f) At the time and place the person is required to appear
100+ before the justice court pursuant to the citation issued to the
101+ person under Subsection (a), the court shall inquire whether the
102+ district or county attorney intends to collect a civil penalty or
103+ prosecute an offense. If the attorney does not answer in the
104+ affirmative, the court shall dismiss the complaint with prejudice.
105+ (g) A person liable for a civil penalty under Section
106+ 481.1211, Health and Safety Code, may not appeal under Article
107+ 45.042.
108+ (h) Before imposing a civil penalty under Section 481.1211,
109+ Health and Safety Code, the court shall determine whether the
110+ person subject to the penalty is indigent. If the court determines
111+ the person is indigent, the court shall waive the penalty and may
112+ order the person to complete not more than 10 hours of community
113+ service.
114+ (i) Subsections (p), (r), and (s) apply to a person for whom
115+ a court waives a penalty under Subsection (h).
116+ (j) The court may waive or reduce the civil penalty for a
117+ person other than a person described by Subsection (h) if:
118+ (1) the person subject to a civil penalty under
119+ Section 481.1211, Health and Safety Code, attends a program that
120+ provides education in substance abuse and is approved by the
121+ Department of State Health Services, the Texas Department of
122+ Licensing and Regulation, or the Texas Department of Public Safety;
123+ or
124+ (2) the person performs not more than 10 hours of
125+ community service, as ordered by the court.
126+ (k) If during a proceeding for a violation of Section
127+ 481.1211, Health and Safety Code, the court finds that the person
128+ has previously been assessed a civil penalty under that section one
129+ time, the court shall, in addition to assessing a civil penalty,
130+ order the person to attend a program that provides education in
131+ substance abuse and is approved by the Department of State Health
132+ Services, the Texas Department of Licensing and Regulation, or the
133+ Texas Department of Public Safety.
134+ (l) If during a proceeding for a violation of Section
135+ 481.1211, Health and Safety Code, the court finds that the person
136+ has previously been assessed a civil penalty under that section two
137+ times, the court shall suspend the proceedings and notify the
138+ appropriate prosecuting attorney so that the person may be charged
139+ with an offense under Section 481.1212, Health and Safety Code.
140+ (m) On a plea of guilty or nolo contendere for an offense
141+ under Section 481.1212, Health and Safety Code, by a defendant and
142+ payment of all court costs, the judge shall defer further
143+ proceedings without entering an adjudication of guilt and place the
144+ defendant on probation under the provisions of Article 45.051.
145+ (n) The court may issue a capias for the arrest of a person
146+ who fails to appear or to make payment, as directed by a citation
147+ issued under this article.
148+ (o) If the court determines that the civil penalty assessed
149+ under Section 411.1211, Health and Safety Code, is uncollectable,
150+ the court may enter an order waiving any remaining unpaid portion of
151+ the penalty.
152+ (p) Law enforcement may seize any marihuana in possession of
153+ a person subject to a civil penalty under Section 481.1211, Health
154+ and Safety Code, or subject to prosecution under Section 481.1212
155+ of that code. If marihuana is seized under this article in
156+ connection with a violation of Section 481.1211, Health and Safety
157+ Code, law enforcement shall preserve the marihuana as if the
158+ marihuana were evidence of an offense under Section 481.1212,
159+ Health and Safety Code, pending the final resolution of a civil
160+ proceeding under this article. After final resolution of a civil
161+ proceeding under this article, any marihuana seized is subject to
162+ forfeiture and shall be disposed of in accordance with Section
163+ 481.159, Health and Safety Code.
164+ (q) This article does not affect the authority of a peace
165+ officer to conduct a search or seize marihuana or other property as
166+ contraband under Chapter 18 or 59 or other law.
167+ (r) The identity of a person cited for a violation of
168+ Section 481.1211, Health and Safety Code, is confidential
169+ information and may not be disclosed to the public unless the person
170+ is charged with an offense under Section 481.1212, Health and
171+ Safety Code, in connection with that citation.
172+ (s) The identity of a person found liable for a civil
173+ penalty under Section 481.1211, Health and Safety Code, is
174+ confidential information and may not be disclosed to the public.
175+ (t) A court that assesses a civil penalty under Section
176+ 481.1211, Health and Safety Code, may maintain a database or other
177+ electronic record of penalties assessed under that section. The
178+ court may share that database or electronic record with other
179+ courts and prosecutors in this state for purposes of determining
180+ whether a person has been previously assessed a civil penalty under
181+ Section 481.1211, Health and Safety Code, and is subject to
182+ prosecution under Section 481.1212 of that code. The information
183+ in the database or electronic record is confidential and may not be
184+ disclosed to the public.
185+ SECTION 5. Section 51.03(a), Family Code, is amended to
186+ read as follows:
187+ (a) Delinquent conduct is:
188+ (1) conduct, other than a traffic offense, that
189+ violates a penal law of this state or of the United States
190+ punishable by imprisonment or by confinement in jail;
191+ (2) conduct that violates a lawful order of a court
192+ under circumstances that would constitute contempt of that court
193+ in:
194+ (A) a justice or municipal court;
195+ (B) a county court for conduct punishable only by
196+ a fine; or
197+ (C) a truancy court;
198+ (3) conduct that violates Section 49.04, 49.05, 49.06,
199+ 49.07, or 49.08, Penal Code; [or]
200+ (4) conduct that violates Section 106.041, Alcoholic
201+ Beverage Code, relating to driving under the influence of alcohol
202+ by a minor (third or subsequent offense); or
203+ (5) conduct for which a person is subject to a civil
204+ penalty under Section 481.1211, Health and Safety Code, or that
205+ violates Section 481.1212 of that code.
206+ SECTION 6. Section 118.124, Local Government Code, is
33207 amended to read as follows:
34- (a) A person commits an offense if the person:
35- (1) barters property or expends funds the person knows
36- are derived from the commission of an offense under this chapter
37- punishable by imprisonment in the Texas Department of Criminal
38- Justice for life;
39- (2) barters property or expends funds the person knows
40- are derived from the commission of an offense under Section
41- 481.121(a) that is punishable under Section 481.121(b)(6)
42- [481.121(b)(5)];
43- (3) barters property or finances or invests funds the
44- person knows or believes are intended to further the commission of
45- an offense for which the punishment is described by Subdivision
46- (1); or
47- (4) barters property or finances or invests funds the
48- person knows or believes are intended to further the commission of
49- an offense under Section 481.121(a) that is punishable under
50- Section 481.121(b)(6) [481.121(b)(5)].
51- SECTION 3. Sections 481.134(c), (d), (e), and (f), Health
52- and Safety Code, are amended to read as follows:
53- (c) The minimum term of confinement or imprisonment for an
54- offense otherwise punishable under Section 481.112(c), (d), (e), or
55- (f), 481.1121(b)(2), (3), or (4), 481.113(c), (d), or (e),
56- 481.114(c), (d), or (e), 481.115(c)-(f), 481.1151(b)(2), (3), (4),
57- or (5), 481.116(c), (d), or (e), 481.1161(b)(4), (5), or (6),
58- 481.117(c), (d), or (e), 481.118(c), (d), or (e), 481.120(b)(4),
59- (5), or (6), or 481.121(b)(5), (6), or (7) [481.121(b)(4), (5), or
60- (6)] is increased by five years and the maximum fine for the offense
61- is doubled if it is shown on the trial of the offense that the
62- offense was committed:
63- (1) in, on, or within 1,000 feet of the premises of a
64- school, the premises of a public or private youth center, or a
65- playground; or
66- (2) on a school bus.
67- (d) An offense otherwise punishable under Section
68- 481.112(b), 481.1121(b)(1), 481.113(b), 481.114(b), 481.115(b),
69- 481.1151(b)(1), 481.116(b), 481.1161(b)(3), 481.120(b)(3), or
70- 481.121(b)(4) [481.121(b)(3)] is a felony of the third degree if it
71- is shown on the trial of the offense that the offense was committed:
72- (1) in, on, or within 1,000 feet of any real property
73- that is owned, rented, or leased to a school or school board, the
74- premises of a public or private youth center, or a playground; or
75- (2) on a school bus.
76- (e) An offense otherwise punishable under Section
77- 481.117(b), 481.119(a), 481.120(b)(2), or 481.121(b)(3)
78- [481.121(b)(2)] is a state jail felony if it is shown on the trial
79- of the offense that the offense was committed:
80- (1) in, on, or within 1,000 feet of any real property
81- that is owned, rented, or leased to a school or school board, the
82- premises of a public or private youth center, or a playground; or
83- (2) on a school bus.
84- (f) An offense otherwise punishable under Section
85- 481.118(b), 481.119(b), 481.120(b)(1), or 481.121(b)(2)
86- [481.121(b)(1)] is a Class A misdemeanor if it is shown on the trial
87- of the offense that the offense was committed:
88- (1) in, on, or within 1,000 feet of any real property
89- that is owned, rented, or leased to a school or school board, the
90- premises of a public or private youth center, or a playground; or
91- (2) on a school bus.
92- SECTION 4. Article 14.06, Code of Criminal Procedure, is
93- amended by adding Subsections (b-1) and (b-2) and amending
94- Subsection (d) to read as follows:
95- (b-1) A peace officer who is charging a person with
96- committing an offense under Section 481.121(b)(1) or 481.125(a),
97- Health and Safety Code, may not arrest the person and shall issue
98- the person a citation as provided by Subsection (b).
99- (b-2) Subsection (b-1) does not apply to an officer making
100- an arrest for an offense other than an offense under Section
101- 481.121(b)(1) or 481.125(a), Health and Safety Code.
102- (d) Subsection (c) applies only to a person charged with
103- committing an offense under:
104- (1) Section 481.121, Health and Safety Code, if the
105- offense is punishable under Subsection (b)(2) or (3) [(b)(1) or
106- (2)] of that section;
107- (1-a) Section 481.1161, Health and Safety Code, if the
108- offense is punishable under Subsection (b)(1) or (2) of that
109- section;
110- (2) Section 28.03, Penal Code, if the offense is
111- punishable under Subsection (b)(2) of that section;
112- (3) Section 28.08, Penal Code, if the offense is
113- punishable under Subsection (b)(2) or (3) of that section;
114- (4) Section 31.03, Penal Code, if the offense is
115- punishable under Subsection (e)(2)(A) of that section;
116- (5) Section 31.04, Penal Code, if the offense is
117- punishable under Subsection (e)(2) of that section;
118- (6) Section 38.114, Penal Code, if the offense is
119- punishable as a Class B misdemeanor; or
120- (7) Section 521.457, Transportation Code.
121- SECTION 5. Articles 42A.551(a) and (c), Code of Criminal
122- Procedure, are amended to read as follows:
123- (a) Except as otherwise provided by Subsection (b) or (c),
124- on conviction of a state jail felony under Section 481.115(b),
125- 481.1151(b)(1), 481.116(b), 481.1161(b)(3), 481.121(b)(4)
126- [481.121(b)(3)], or 481.129(g)(1), Health and Safety Code, that is
127- punished under Section 12.35(a), Penal Code, the judge shall
128- suspend the imposition of the sentence and place the defendant on
129- community supervision.
130- (c) Subsection (a) does not apply to a defendant who:
131- (1) under Section 481.1151(b)(1), Health and Safety
132- Code, possessed more than five abuse units of the controlled
133- substance;
134- (2) under Section 481.1161(b)(3), Health and Safety
135- Code, possessed more than one pound, by aggregate weight, including
136- adulterants or dilutants, of the controlled substance; or
137- (3) under Section 481.121(b)(4) [481.121(b)(3)],
138- Health and Safety Code, possessed more than one pound of marihuana.
139- SECTION 6. Subchapter B, Chapter 45, Code of Criminal
140- Procedure, is amended by adding Article 45.02161 to read as
141- follows:
142- Art. 45.02161. EXPUNCTION OF CERTAIN RECORDS. (a) This
143- article applies only to a person charged with an offense under
144- Section 481.121(b)(1) or 481.125(a), Health and Safety Code.
145- (b) Records of a person relating to a complaint may be
146- expunged under this article if:
147- (1) the complaint was dismissed under Article 45.051
148- or 45.052 or other law; and
149- (A) at least 180 days has elapsed from the date of
150- the dismissal; or
151- (B) at least one year has elapsed from the date of
152- the citation; or
153- (2) the person was acquitted of the offense.
154- (c) The person must make a written request to have the
155- records expunged. The request must be under oath.
156- (d) The court shall order all complaints, verdicts,
157- sentences, and prosecutorial and law enforcement records and any
158- other documents relating to the offense expunged from the person's
159- record if the court finds that the person satisfies the
160- requirements of this article.
161- (e) The justice or municipal court shall require a person
162- who requests expungement under this article to pay a fee in the
163- amount of $30 to defray the cost of notifying state agencies of
164- orders of expungement under this article.
165- (f) The procedures for expunction provided under this
166- article are separate and distinct from the expunction procedures
167- under Chapter 55.
168- SECTION 7. Article 45.051, Code of Criminal Procedure, is
169- amended by adding Subsections (a-2) and (e-1) to read as follows:
170- (a-2) Unless the defendant has previously received a
171- deferral of disposition for an offense under Section 481.121(b)(1)
172- or 481.125(a), Health and Safety Code, committed within the
173- 12-month period preceding the date of the commission of the instant
174- offense, on plea of guilty or nolo contendere for either offense,
175- the judge shall defer further proceedings without entering an
176- adjudication of guilt and place the defendant on probation under
177- the provisions of this article.
178- (e-1) A court that dismisses a complaint under this article
179- for a person charged with an offense under Section 481.121(b)(1) or
180- 481.125(a), Health and Safety Code, shall notify the defendant in
181- writing of the person's expunction rights under Article 45.02161
182- and provide the person with a copy of that article. The dismissed
183- complaint is not a conviction and may not be used against the person
184- for any purpose.
185- SECTION 8. Section 411.0728(a), Government Code, is amended
186- to read as follows:
187- (a) This section applies only to a person:
188- (1) who is placed on community supervision under
189- Chapter 42A, Code of Criminal Procedure, after conviction for an
190- offense under:
191- (A) Section 481.120, Health and Safety Code, if
192- the offense is punishable under Subsection (b)(1);
193- (B) Section 481.121, Health and Safety Code, if
194- the offense is punishable under Subsection (b)(2) [(b)(1)];
195- (C) Section 31.03, Penal Code, if the offense is
196- punishable under Subsection (e)(1) or (2);
197- (D) Section 43.02, Penal Code; or
198- (E) Section 43.03(a)(2), Penal Code, if the
199- offense is punishable as a Class A misdemeanor; and
200- (2) with respect to whom the conviction is
201- subsequently set aside by the court under Article 42A.701, Code of
202- Criminal Procedure.
203- SECTION 9. Section 521.371(3), Transportation Code, is
204- amended to read as follows:
205- (3) "Drug offense" has the meaning assigned under 23
206- U.S.C. Section 159(c) and includes an offense under Section 49.04,
207- 49.07, or 49.08, Penal Code, that is committed as a result of the
208- introduction into the body of any substance the possession of which
209- is prohibited under the Controlled Substances Act. The term does
210- not include an offense punishable by fine only under the laws of
211- this state.
212- SECTION 10. The changes in law made by this Act apply only
213- to an offense committed on or after the effective date of this Act.
214- An offense committed before the effective date of this Act is
215- governed by the law in effect on the date the offense was committed,
216- and the former law is continued in effect for that purpose. For
217- purposes of this section, an offense was committed before the
218- effective date of this Act if any element of the offense was
219- committed before that date.
220- SECTION 11. (a) Except as otherwise provided by this
221- section, this Act takes effect September 1, 2019.
222- (b) Section 521.371, Transportation Code, as amended by
223- this Act, takes effect on the 91st day after the date the office of
224- the attorney general publishes in the Texas Register a finding
225- that:
226- (1) the legislature of this state has adopted a
227- resolution expressing the legislature's opposition to a law meeting
228- the requirements of 23 U.S.C. Section 159 in suspending, revoking,
229- or denying the driver's license of a person convicted of a drug
230- offense punishable by fine only for a period of six months;
231- (2) the governor of this state has submitted to the
232- United States secretary of transportation:
233- (A) a written certification of the governor's
234- opposition to the enactment or enforcement of a law required under
235- 23 U.S.C. Section 159 as that law relates to offenses punishable by
236- fine only; and
237- (B) a written certification that the legislature
238- has adopted the resolution described by Subdivision (1) of this
239- subsection; and
240- (3) the United States secretary of transportation has
241- responded to the governor's submission and certified that highway
242- funds will not be withheld from this state in response to the
243- partial repeal of the law required under 23 U.S.C. Section 159.
208+ Sec. 118.124. PROHIBITED FEES. A justice of the peace is
209+ not entitled to a fee for:
210+ (1) the examination of a paper or record in the
211+ justice's office;
212+ (2) filing any process or document the justice issues
213+ that is returned to court;
214+ (3) a motion or judgment on a motion for security for
215+ costs;
216+ (4) taking or approving a bond for costs; [or]
217+ (5) the first copy of a document in a criminal case
218+ issued to:
219+ (A) a criminal defendant in the case;
220+ (B) an attorney representing a criminal
221+ defendant in the case; or
222+ (C) a prosecuting attorney; or
223+ (6) the filing of a civil action by the state under
224+ Section 481.1211, Health and Safety Code.
225+ SECTION 7. The changes in law made by this Act apply only to
226+ a violation of law that occurs on or after the effective date of
227+ this Act. A violation that occurs before the effective date of this
228+ Act is governed by the law in effect on the date the violation
229+ occurred, and the former law is continued in effect for that
230+ purpose. For purposes of this section, a violation of law occurred
231+ before the effective date of this Act if any element of the
232+ violation occurred before that date.
233+ SECTION 8. This Act takes effect September 1, 2019.