TX
Texas House Bill HB3772

Texas 2021 - 87th Regular

Texas House Bill HB3772 Compare Versions

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1-87R20631 JSC-D
2- By: White, Hunter, et al. H.B. No. 3772
3- Substitute the following for H.B. No. 3772:
4- By: Bell of Kaufman C.S.H.B. No. 3772
1+2021S0126-2 03/03/21
2+ By: White H.B. No. 3772
53
64
75 A BILL TO BE ENTITLED
86 AN ACT
9- relating to the criminal consequences of certain criminal offenses
10- involving the possession of marihuana or possession of drug
11- paraphernalia; imposing a fee; authorizing a fine.
7+ relating to the criminal and licensing consequences of certain
8+ criminal offenses involving the possession or delivery of marihuana
9+ and cannabis concentrate or possession of drug paraphernalia;
10+ imposing a fee; authorizing a fine.
1211 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
13- SECTION 1. Section 481.002(26), Health and Safety Code, is
14- amended to read as follows:
12+ SECTION 1. Section 481.002, Health and Safety Code, is
13+ amended by amending Subdivision (26) and adding Subdivision (57) to
14+ read as follows:
1515 (26) "Marihuana" means any part of a [the] plant of the
16- genus Cannabis [sativa L.], whether growing or not, containing
17- delta-9 tetrahydrocannabinol and:
16+ genus Cannabis [Cannabis sativa L.], whether growing or not, with a
17+ concentration of delta-9 tetrahydrocannabinol of one percent or
18+ more by weight and:
1819 (A) includes:
1920 (i) the seeds of that plant; and
20- (ii) processed forms of that plant,
21- including the resin extracted from the plant and compounds,
22- manufactures, salts, derivatives, decarboxylates, mixtures, or
23- preparations of the plant; [,] and
21+ (ii) cannabis concentrate;[,] and
2422 (B) [every compound, manufacture, salt,
2523 derivative, mixture, or preparation of that plant or its seeds. The
2624 term] does not include:
2725 (i) any material excluded from the federal
2826 Controlled Substances Act definition of marihuana under 21 U.S.C.
2927 Section 802(16)(B);
30- (ii) [(A) the resin extracted from a part of
31- the plant or a compound, manufacture, salt, derivative, mixture, or
32- preparation of the resin;
28+ (ii) cannabis plant material and products
29+ that contain tetrahydrocannabinol and are exempted from the federal
30+ Controlled Substances Act under 21 C.F.R. Section 1308.35;
31+ (iii) [(A) the resin extracted from a part
32+ of the plant or a compound, manufacture, salt, derivative, mixture,
33+ or preparation of the resin;
3334 [(B) the mature stalks of the plant or fiber
3435 produced from the stalks;
3536 [(C) oil or cake made from the seeds of the plant;
3637 [(D) a compound, manufacture, salt, derivative,
3738 mixture, or preparation of the mature stalks, fiber, oil, or cake;
3839 [(E) the sterilized seeds of the plant that are
3940 incapable of beginning germination; or
4041 [(F)] hemp, as that term is defined by Section
4142 121.001, Agriculture Code;
42- (iii) a nonconsumable hemp product, as that
43+ (iv) a nonconsumable hemp product, as that
4344 term is defined by Section 122.001, Agriculture Code; or
44- (iv) a consumable hemp product, as that
45- term is defined by Section 443.001.
45+ (v) a consumable hemp product, as that term
46+ is defined by Section 443.001.
47+ (57) "Cannabis concentrate" means the processed forms
48+ of a plant of the genus Cannabis containing five milligrams or more
49+ of delta-9 tetrahydrocannabinol, including:
50+ (A) the resin extracted from the plant; and
51+ (B) compounds, manufactures, salts, derivatives,
52+ decarboxylates, mixtures, or preparations of the plant or the resin
53+ extracted from the plant.
4654 SECTION 2. Section 481.103, Health and Safety Code, is
4755 amended by adding Subsection (d) to read as follows:
48- (d) Penalty Group 2 does not include any material excluded
49- from the definition of marihuana under Section 481.002(26)(B).
50- SECTION 3. Section 481.121(b), Health and Safety Code, is
56+ (d) Penalty Group 2 does not include:
57+ (1) any material excluded from the definition of
58+ marihuana by Section 481.002(26)(B);
59+ (2) a plant of the Cannabis genus with a delta-9
60+ tetrahydrocannabinol concentration of less than one percent by
61+ weight; or
62+ (3) a processed form of a plant of the genus Cannabis
63+ containing less than five milligrams of delta-9
64+ tetrahydrocannabinol.
65+ SECTION 3. Section 481.111(e), Health and Safety Code, is
66+ amended to read as follows:
67+ (e) Sections 481.113, 481.116, 481.120, 481.121, 481.122,
68+ and 481.125 do not apply to a person who engages in the acquisition,
69+ possession, production, cultivation, delivery, or disposal of a raw
70+ material used in or by-product created by the production or
71+ cultivation of low-THC cannabis if the person:
72+ (1) for an offense involving possession only of
73+ marihuana or drug paraphernalia, is a patient for whom low-THC
74+ cannabis is prescribed under Chapter 169, Occupations Code, or the
75+ patient's legal guardian, and the person possesses low-THC cannabis
76+ obtained under a valid prescription from a dispensing organization;
77+ or
78+ (2) is a director, manager, or employee of a
79+ dispensing organization and the person, solely in performing the
80+ person's regular duties at the organization, acquires, possesses,
81+ produces, cultivates, dispenses, or disposes of:
82+ (A) in reasonable quantities, any low-THC
83+ cannabis or raw materials used in or by-products created by the
84+ production or cultivation of low-THC cannabis; or
85+ (B) any drug paraphernalia used in the
86+ acquisition, possession, production, cultivation, delivery, or
87+ disposal of low-THC cannabis.
88+ SECTION 4. Section 481.120(b), Health and Safety Code, is
5189 amended to read as follows:
5290 (b) An offense under Subsection (a) is:
53- (1) a Class C misdemeanor if the amount of marihuana
54- possessed is one ounce or less;
55- (1-a) a Class B misdemeanor if the amount of marihuana
56- possessed is two ounces or less but more than one ounce;
57- (2) a Class A misdemeanor if the amount of marihuana
58- possessed is four ounces or less but more than two ounces;
59- (3) a state jail felony if the amount of marihuana
60- possessed is five pounds or less but more than four ounces;
61- (4) a felony of the third degree if the amount of
62- marihuana possessed is 50 pounds or less but more than 5 pounds;
63- (5) a felony of the second degree if the amount of
64- marihuana possessed is 2,000 pounds or less but more than 50 pounds;
65- and
66- (6) punishable by imprisonment in the Texas Department
67- of Criminal Justice for life or for a term of not more than 99 years
68- or less than 5 years, and a fine not to exceed $50,000, if the amount
69- of marihuana possessed is more than 2,000 pounds.
70- SECTION 4. Section 481.134(f), Health and Safety Code, is
91+ (1) a Class B misdemeanor if:
92+ (A) the person committing the offense does not
93+ receive remuneration for the marihuana; and
94+ (B) the amount [of marihuana] delivered is:
95+ (i) one-fourth ounce or less of marihuana
96+ other than cannabis concentrate [and the person committing the
97+ offense does not receive remuneration for the marihuana]; or
98+ (ii) cannabis concentrate containing 70
99+ milligrams or less of delta-9 tetrahydrocannabinol;
100+ (2) except as provided by Subdivision (1), a Class A
101+ misdemeanor if the amount [of marihuana] delivered is:
102+ (A) two ounces [one-fourth ounce] or less of
103+ marihuana other than cannabis concentrate [and the person
104+ committing the offense receives remuneration for the marihuana]; or
105+ (B) cannabis concentrate containing 560
106+ milligrams or less of delta-9 tetrahydrocannabinol;
107+ (3) a state jail felony if:
108+ (A) the amount of marihuana other than cannabis
109+ concentrate delivered is 2.5 [five] pounds or less but more than two
110+ ounces [one-fourth ounce]; or
111+ (B) the amount of delta-9 tetrahydrocannabinol
112+ in cannabis concentrate delivered is 11 grams or less but more than
113+ 560 milligrams;
114+ (4) a felony of the third [second] degree if:
115+ (A) the amount of marihuana other than cannabis
116+ concentrate delivered is 25 [50] pounds or less but more than 2.5
117+ [five] pounds; or
118+ (B) the amount of delta-9 tetrahydrocannabinol
119+ in cannabis concentrate delivered is 110 grams or less but more than
120+ 11 grams;
121+ (5) a felony of the second [first] degree if:
122+ (A) the amount of marihuana other than cannabis
123+ concentrate delivered is 1,000 [2,000] pounds or less but more than
124+ 25 [50] pounds; or
125+ (B) the amount of delta-9 tetrahydrocannabinol
126+ in cannabis concentrate delivered is 4.5 kilograms or less but more
127+ than 110 grams; and
128+ (6) a felony of the first degree [punishable by
129+ imprisonment in the Texas Department of Criminal Justice for life
130+ or for a term of not more than 99 years or less than 10 years, and a
131+ fine not to exceed $100,000,] if:
132+ (A) the amount of marihuana other than cannabis
133+ concentrate delivered is more than 1,000 [2,000] pounds; or
134+ (B) the amount of delta-9 tetrahydrocannabinol
135+ in cannabis concentrate delivered is more than 4.5 kilograms.
136+ SECTION 5. Section 481.121(b), Health and Safety Code, is
137+ amended to read as follows:
138+ (b) An offense under Subsection (a) is:
139+ (1) a Class C misdemeanor if:
140+ (A) the amount of marihuana other than cannabis
141+ concentrate possessed is one ounce or less; or
142+ (B) the amount of delta-9 tetrahydrocannabinol
143+ in cannabis concentrate possessed is 280 milligrams or less;
144+ (1-a) a Class B misdemeanor if:
145+ (A) the amount of marihuana other than cannabis
146+ concentrate possessed is two ounces or less but more than one ounce;
147+ or
148+ (B) the amount of delta-9 tetrahydrocannabinol
149+ in cannabis concentrate possessed is 560 milligrams or less but
150+ more than 280 milligrams;
151+ (2) a Class A misdemeanor if:
152+ (A) the amount of marihuana other than cannabis
153+ concentrate possessed is four ounces or less but more than two
154+ ounces; or
155+ (B) the amount of delta-9 tetrahydrocannabinol
156+ in cannabis concentrate possessed is 1.1 grams or less but more than
157+ 560 milligrams;
158+ (3) a state jail felony if:
159+ (A) the amount of marihuana other than cannabis
160+ concentrate possessed is five pounds or less but more than four
161+ ounces; or
162+ (B) the amount of delta-9 tetrahydrocannabinol
163+ in cannabis concentrate possessed is 22 grams or less but more than
164+ 1.1 grams;
165+ (4) a felony of the third degree if:
166+ (A) the amount of marihuana other than cannabis
167+ concentrate possessed is 50 pounds or less but more than 5 pounds;
168+ or
169+ (B) the amount of delta-9 tetrahydrocannabinol
170+ in cannabis concentrate possessed is 220 grams or less but more than
171+ 22 grams;
172+ (5) a felony of the second degree if:
173+ (A) the amount of marihuana other than cannabis
174+ concentrate possessed is 2,000 pounds or less but more than 50
175+ pounds; or
176+ (B) the amount of delta-9 tetrahydrocannabinol
177+ in cannabis concentrate possessed is 9 kilograms or less but more
178+ than 220 grams; and
179+ (6) a felony of the first degree [punishable by
180+ imprisonment in the Texas Department of Criminal Justice for life
181+ or for a term of not more than 99 years or less than 5 years, and a
182+ fine not to exceed $50,000,] if:
183+ (A) the amount of marihuana other than cannabis
184+ concentrate possessed is more than 2,000 pounds; or
185+ (B) the amount of delta-9 tetrahydrocannabinol
186+ in cannabis concentrate possessed is more than 9 kilograms.
187+ SECTION 6. Section 481.122(b), Health and Safety Code, is
188+ amended to read as follows:
189+ (b) It is an affirmative defense to prosecution under this
190+ section that:
191+ (1) the actor was a child when the offense was
192+ committed; or
193+ (2) the actor:
194+ (A) was younger than 21 years of age when the
195+ offense was committed;
196+ (B) delivered only marihuana in an amount equal
197+ to or less than:
198+ (i) one-fourth ounce of marihuana other
199+ than cannabis concentrate; or
200+ (ii) cannabis concentrate containing 70
201+ milligrams of delta-9 tetrahydrocannabinol; and
202+ (C) did not receive remuneration for the
203+ delivery.
204+ SECTION 7. Section 481.134(f), Health and Safety Code, is
71205 amended to read as follows:
72206 (f) An offense otherwise punishable under Section
73207 481.118(b), 481.119(b), 481.120(b)(1), or 481.121(b)(1-a)
74208 [481.121(b)(1)] is a Class A misdemeanor if it is shown on the trial
75209 of the offense that the offense was committed:
76210 (1) in, on, or within 1,000 feet of any real property
77211 that is owned, rented, or leased to a school or school board, the
78212 premises of a public or private youth center, or a playground; or
79213 (2) on a school bus.
80- SECTION 5. Article 14.06(d), Code of Criminal Procedure, is
214+ SECTION 8. Article 14.06(d), Code of Criminal Procedure, is
81215 amended to read as follows:
82216 (d) Subsection (c) applies only to a person charged with
83217 committing an offense under:
84218 (1) Section 481.121, Health and Safety Code, if the
85219 offense is punishable under Subsection (b)(1-a) [(b)(1)] or (2) of
86220 that section;
87221 (1-a) Section 481.1161, Health and Safety Code, if the
88222 offense is punishable under Subsection (b)(1) or (2) of that
89223 section;
90224 (2) Section 28.03, Penal Code, if the offense is
91225 punishable under Subsection (b)(2) of that section;
92226 (3) Section 28.08, Penal Code, if the offense is
93227 punishable under Subsection (b)(2) or (3) of that section;
94228 (4) Section 31.03, Penal Code, if the offense is
95229 punishable under Subsection (e)(2)(A) of that section;
96230 (5) Section 31.04, Penal Code, if the offense is
97231 punishable under Subsection (e)(2) of that section;
98232 (6) Section 38.114, Penal Code, if the offense is
99233 punishable as a Class B misdemeanor; or
100234 (7) Section 521.457, Transportation Code.
101- SECTION 6. Subchapter B, Chapter 45, Code of Criminal
235+ SECTION 9. Article 42A.551(c), Code of Criminal Procedure,
236+ is amended to read as follows:
237+ (c) Subsection (a) does not apply to a defendant who:
238+ (1) under Section 481.1151(b)(1), Health and Safety
239+ Code, possessed more than five abuse units of the controlled
240+ substance;
241+ (2) under Section 481.1161(b)(3), Health and Safety
242+ Code, possessed more than one pound, by aggregate weight, including
243+ adulterants or dilutants, of the controlled substance; or
244+ (3) under Section 481.121(b)(3), Health and Safety
245+ Code, possessed:
246+ (A) more than one pound of marihuana other than
247+ cannabis concentrate; or
248+ (B) cannabis concentrate with more than 4.5 grams
249+ of delta-9 tetrahydrocannabinol.
250+ SECTION 10. Subchapter B, Chapter 45, Code of Criminal
102251 Procedure, is amended by adding Article 45.02161 to read as
103252 follows:
104253 Art. 45.02161. EXPUNCTION OF CERTAIN RECORDS. (a) This
105254 article applies only to a person charged with an offense under
106255 Section 481.121(b)(1) or 481.125(a), Health and Safety Code.
107256 (b) Records of a person relating to a complaint may be
108257 expunged under this article if:
109258 (1) the complaint was dismissed under Article 45.051
110259 or 45.052 or other law and:
111260 (A) at least 180 days have elapsed from the date
112261 of the dismissal; or
113262 (B) at least one year has elapsed from the date of
114263 the citation; or
115264 (2) the person was acquitted of the offense.
116- (c) The person must make a written request to have the
265+ (c) A court that dismisses a complaint to which this article
266+ applies shall provide written notice to the person of the person's
267+ right to expunction under this article as soon as practicable after
268+ the date the person becomes eligible for expunction.
269+ (d) The person must make a written request to have the
117270 records expunged. The request must be under oath.
118- (d) The court shall order all complaints, verdicts,
271+ (e) The court shall order all complaints, verdicts,
119272 sentences, and prosecutorial and law enforcement records and any
120273 other documents relating to the offense expunged from the person's
121274 record if the court finds that the person satisfies the
122275 requirements of this article.
123- (e) The justice or municipal court shall require a person
276+ (f) The justice or municipal court shall require a person
124277 who requests expungement under this article to pay a fee in the
125278 amount of $30 to defray the cost of notifying state agencies of
126279 orders of expungement under this article.
127- (f) The procedures for expunction provided under this
280+ (g) The procedures for expunction provided under this
128281 article are separate and distinct from the expunction procedures
129282 under Chapter 55.
130- SECTION 7. Article 45.051, Code of Criminal Procedure, is
283+ SECTION 11. Article 45.051, Code of Criminal Procedure, is
131284 amended by adding Subsection (a-2) to read as follows:
132285 (a-2) Unless the defendant has previously received a
133286 deferral of disposition for an offense under Section 481.121(b)(1)
134287 or 481.125(a), Health and Safety Code, committed within the
135288 12-month period preceding the date of the commission of the instant
136289 offense, on plea of guilty or nolo contendere for either offense,
137290 the judge shall defer further proceedings without entering an
138291 adjudication of guilt and place the defendant on probation under
139292 the provisions of this article.
140- SECTION 8. Subchapter A, Chapter 102, Code of Criminal
293+ SECTION 12. Subchapter A, Chapter 102, Code of Criminal
141294 Procedure, is amended by adding Article 102.0179 to read as
142295 follows:
143296 Art. 102.0179. FINE FOR CERTAIN DRUG AND TEXAS CONTROLLED
144297 SUBSTANCES ACT CONVICTIONS: MOBILITY FUND. (a) In addition to any
145298 other fees and fines imposed under this subchapter, a defendant
146299 convicted of an offense described by Section 521.372(a),
147- Transportation Code, punishable by fine only shall pay a fine of
148- $100.
300+ Transportation Code, punishable by fine only shall pay a fine in an
301+ amount that is equivalent to the sum of all fees applicable to a
302+ suspension and reinstatement of a driver's license under Chapter
303+ 521, Transportation Code. The Department of Public Safety shall
304+ annually calculate and make available the amount of the fine
305+ described by this subsection.
149306 (b) The court shall waive imposition of a fine under this
150307 article if the defendant's driver's license is suspended under
151308 Chapter 521, Transportation Code, as a result of the conviction of
152309 another offense arising from the same criminal episode.
153310 (c) The court shall collect the fine under this article in
154311 the same manner as court costs are collected in the case.
155312 (d) A fine collected under this article shall be deposited
156313 to the credit of the Texas mobility fund.
157- SECTION 9. Section 411.0728(a), Government Code, is amended
158- to read as follows:
314+ SECTION 13. Section 411.0728(a), Government Code, is
315+ amended to read as follows:
159316 (a) This section applies only to a person:
160317 (1) who is convicted of or placed on deferred
161318 adjudication community supervision for an offense under:
162319 (A) Section 481.120, Health and Safety Code, if
163320 the offense is punishable under Subsection (b)(1);
164321 (B) Section 481.121, Health and Safety Code, if
165322 the offense is punishable under Subsection (b)(1-a) [(b)(1)];
166323 (C) Section 31.03, Penal Code, if the offense is
167324 punishable under Subsection (e)(1) or (2); or
168325 (D) Section 43.02, Penal Code; and
169326 (2) who, if requested by the applicable law
170327 enforcement agency or prosecuting attorney to provide assistance in
171328 the investigation or prosecution of an offense under Section
172329 20A.02, 20A.03, or 43.05, Penal Code, or a federal offense
173330 containing elements that are substantially similar to the elements
174331 of an offense under any of those sections:
175332 (A) provided assistance in the investigation or
176333 prosecution of the offense; or
177334 (B) did not provide assistance in the
178335 investigation or prosecution of the offense due to the person's age
179336 or a physical or mental disability resulting from being a victim of
180337 an offense described by this subdivision.
181- SECTION 10. Section 521.372, Transportation Code, is
338+ SECTION 14. Section 521.372, Transportation Code, is
182339 amended by adding Subsection (d) to read as follows:
183340 (d) This section does not apply to a drug offense punishable
184341 by fine only under the laws of this state.
185- SECTION 11. The changes in law made by this Act apply only
342+ SECTION 15. The changes in law made by this Act apply only
186343 to an offense committed on or after the effective date of this Act.
187344 An offense committed before the effective date of this Act is
188345 governed by the law in effect on the date the offense was committed,
189346 and the former law is continued in effect for that purpose. For
190347 purposes of this section, an offense was committed before the
191348 effective date of this Act if any element of the offense was
192349 committed before that date.
193- SECTION 12. (a) Except as otherwise provided by this
350+ SECTION 16. (a) Except as otherwise provided by this
194351 section, this Act takes effect September 1, 2021.
195352 (b) Article 102.0179, Code of Criminal Procedure, and
196353 Section 521.372(d), Transportation Code, as added by this Act, take
197354 effect on the 91st day after the date the office of the attorney
198355 general publishes in the Texas Register a finding that:
199356 (1) the legislature of this state has adopted a
200357 resolution expressing the legislature's opposition to a law meeting
201358 the requirements of 23 U.S.C. Section 159 in suspending, revoking,
202359 or denying the driver's license of a person convicted of a drug
203360 offense punishable by fine only for a period of six months;
204361 (2) the governor of this state has submitted to the
205362 United States secretary of transportation:
206363 (A) a written certification of the governor's
207364 opposition to the enactment or enforcement of a law required under
208365 23 U.S.C. Section 159 as that law relates to offenses punishable by
209366 fine only; and
210367 (B) a written certification that the legislature
211368 has adopted the resolution described by Subdivision (1) of this
212369 subsection; and
213370 (3) the United States secretary of transportation has
214371 responded to the governor's submission and certified that highway
215372 funds will not be withheld from this state in response to the
216373 partial repeal of the law required under 23 U.S.C. Section 159.