By: Bernal H.B. No. 224
A BILL TO BE ENTITLED
AN ACT
relating to removing criminal penalties for the possession or
distribution of certain drug paraphernalia under the Texas
Controlled Substances Act.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 481.002(17), Health and Safety Code, is
amended to read as follows:
(17) "Drug paraphernalia" means equipment, a product,
or material that is used or intended for use in planting,
propagating, cultivating, growing, harvesting, manufacturing,
compounding, converting, producing, processing, preparing,
testing, analyzing, packaging, repackaging, storing, containing,
or concealing a controlled substance in violation of this chapter
or in injecting, ingesting, inhaling, or otherwise introducing into
the human body a controlled substance in violation of this chapter.
The term includes:
(A) a kit used or intended for use in planting,
propagating, cultivating, growing, or harvesting a species of plant
that is a controlled substance or from which a controlled substance
may be derived;
(B) a material, compound, mixture, preparation,
or kit used or intended for use in manufacturing, compounding,
converting, producing, processing, or preparing a controlled
substance;
(C) an isomerization device used or intended for
use in increasing the potency of a species of plant that is a
controlled substance;
(D) testing equipment used or intended for use in
identifying or in analyzing the strength, effectiveness, or purity
of a controlled substance;
(D) [(E)] a scale or balance used or intended for
use in weighing or measuring a controlled substance;
(E) [(F)] a dilutant or adulterant, such as
quinine hydrochloride, mannitol, inositol, nicotinamide, dextrose,
lactose, or absorbent, blotter-type material, that is used or
intended to be used to increase the amount or weight of or to
transfer a controlled substance regardless of whether the dilutant
or adulterant diminishes the efficacy of the controlled substance;
(F) [(G)] a separation gin or sifter used or
intended for use in removing twigs and seeds from or in otherwise
cleaning or refining marihuana;
(G) [(H)] a blender, bowl, container, spoon, or
mixing device used or intended for use in compounding a controlled
substance;
(H) [(I)] a capsule, balloon, envelope, or other
container used or intended for use in packaging small quantities of
a controlled substance;
(I) [(J)] a container or other object used or
intended for use in storing or concealing a controlled substance;
(J) [(K)] a hypodermic syringe, needle, or other
object used or intended for use in parenterally injecting a
controlled substance into the human body; and
(K) [(L)] an object used or intended for use in
ingesting, inhaling, or otherwise introducing marihuana, cocaine,
hashish, or hashish oil into the human body, including:
(i) a metal, wooden, acrylic, glass, stone,
plastic, or ceramic pipe with or without a screen, permanent
screen, hashish head, or punctured metal bowl;
(ii) a water pipe;
(iii) a carburetion tube or device;
(iv) a smoking or carburetion mask;
(v) a chamber pipe;
(vi) a carburetor pipe;
(vii) an electric pipe;
(viii) an air-driven pipe;
(ix) a chillum;
(x) a bong; or
(xi) an ice pipe or chiller.
SECTION 2. Section 481.125, Health and Safety Code, is
amended by amending Subsections (a), (b), and (g) and adding
Subsections (j) and (k) to read as follows:
(a) A person commits an offense if the person knowingly or
intentionally uses or possesses with intent to use drug
paraphernalia to plant, propagate, cultivate, grow, harvest,
manufacture, compound, convert, produce, process, prepare, test,
analyze, pack, repack, store, contain, or conceal a controlled
substance in violation of this chapter or to inject, ingest,
inhale, or otherwise introduce into the human body a controlled
substance in violation of this chapter.
(b) A person commits an offense if the person knowingly or
intentionally delivers, possesses with intent to deliver, or
manufactures with intent to deliver drug paraphernalia knowing that
the person who receives or who is intended to receive the drug
paraphernalia intends that it be used to plant, propagate,
cultivate, grow, harvest, manufacture, compound, convert, produce,
process, prepare, test, analyze, pack, repack, store, contain, or
conceal a controlled substance in violation of this chapter or to
inject, ingest, inhale, or otherwise introduce into the human body
a controlled substance in violation of this chapter.
(c) A person commits an offense if the person commits an
offense under Subsection (b), is 18 years of age or older, and the
person who receives or who is intended to receive the drug
paraphernalia is younger than 18 years of age and at least three
years younger than the actor.
(d) An offense under Subsection (a) is a Class C
misdemeanor.
(e) An offense under Subsection (b) is a Class A
misdemeanor, unless it is shown on the trial of a defendant that the
defendant has previously been convicted under Subsection (b) or
(c), in which event the offense is punishable by confinement in jail
for a term of not more than one year or less than 90 days.
(f) An offense under Subsection (c) is a state jail felony.
(g) It is a defense to prosecution for an offense under
Subsection (a) that the actor:
(1) was the first person to request emergency medical
assistance in response to the possible overdose of another person
and:
(A) made the request for medical assistance
during an ongoing medical emergency;
(B) remained on the scene until the medical
assistance arrived; and
(C) cooperated with medical assistance and law
enforcement personnel; [or]
(2) was the victim of a possible overdose for which
emergency medical assistance was requested, by the actor or by
another person, during an ongoing medical emergency; or
(3) was using drug paraphernalia to test a substance
for fentanyl, alpha-methylfentanyl, and any other derivative of
fentanyl.
(h) The defense to prosecution provided by Subsection (g) is
not available if:
(1) at the time the request for emergency medical
assistance was made:
(A) a peace officer was in the process of
arresting the actor or executing a search warrant describing the
actor or the place from which the request for medical assistance was
made; or
(B) the actor is committing another offense,
other than an offense punishable under Section 481.115(b),
481.1151(b)(1), 481.116(b), 481.1161(b)(1) or (2), 481.117(b),
481.118(b), or 481.121(b)(1) or (2), or an offense under Section
481.119(b), 483.041(a), or 485.031(a);
(2) the actor has been previously convicted of or
placed on deferred adjudication community supervision for an
offense under this chapter or Chapter 483 or 485;
(3) the actor was acquitted in a previous proceeding
in which the actor successfully established the defense under that
subsection or Section 481.115(g), 481.1151(c), 481.116(f),
481.1161(c), 481.117(f), 481.118(f), 481.119(c), 481.121(c),
483.041(e), or 485.031(c); or
(4) at any time during the 18-month period preceding
the date of the commission of the instant offense, the actor
requested emergency medical assistance in response to the possible
overdose of the actor or another person.
(i) The defense to prosecution provided by Subsection (g)
does not preclude the admission of evidence obtained by law
enforcement resulting from the request for emergency medical
assistance if that evidence pertains to an offense for which the
defense described by Subsection (g) is not available.
(j) Notwithstanding Subsection (a), it is not unlawful for a
person to use, or to possess with intent to use, equipment,
products, or materials to test or analyze a controlled substance to
determine if the controlled substance has been contaminated with
fentanyl, alpha-methylfentanyl, and any other derivative of
fentanyl.
(k) Notwithstanding Subsection (b), it is not unlawful for a
person or organization to deliver or possess with intent to deliver
equipment, products, or materials to test or analyze a controlled
substance to determine if the controlled substance has been
contaminated with fentanyl or another adulterant.
SECTION 3. The change in law made by this Act applies to
conduct that occurs before, on, or after the effective date of this
Act, except that a final conviction for an offense that exists on
the effective date of this Act is unaffected by this Act.
SECTION 4. This Act takes effect September 1, 2023.