88R20578 LHC-D
By: Dutton, Thompson of Harris H.B. No. 939
Substitute the following for H.B. No. 939:
By: Moody C.S.H.B. No. 939
A BILL TO BE ENTITLED
AN ACT
relating to the penalty for certain offenders for possession of a
small amount of certain controlled substances.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 481.115, Health and Safety Code, is
amended by amending Subsections (b) and (g) and adding Subsections
(b-1) and (b-2) to read as follows:
(b) Except as provided by Subsection (b-1), an [An] offense
under Subsection (a) is a Class A misdemeanor with a minimum term of
confinement of 180 days [state jail felony] if the controlled
substance is listed in Penalty Group 1 and the amount of the
controlled substance possessed is, by aggregate weight, including
adulterants or dilutants, less than one gram.
(b-1) An offense punishable under Subsection (b) is a state
jail felony if the person has been previously convicted of an
offense under this section or Section 481.1151, 481.116, 481.1161,
481.117, 481.118, or 481.121.
(b-2) An offense under Subsection (a) is a state jail felony
if the controlled substance is listed in Penalty Group 1-B and the
amount of the controlled substance possessed is, by aggregate
weight, including adulterants or dilutants, less than one gram.
(g) It is a defense to prosecution for an offense punishable
under Subsection (b) or (b-2) 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.
SECTION 2. Section 481.1151, Health and Safety Code, is
amended by amending Subsections (b) and (d) and adding Subsection
(b-1) to read as follows:
(b) An offense under this section is:
(1) a Class A misdemeanor with a minimum term of
confinement of 180 days [state jail felony] if the number of abuse
units of the controlled substance is fewer than 20, except as
provided by Subsection (b-1);
(2) a felony of the third degree if the number of abuse
units of the controlled substance is 20 or more but fewer than 80;
(3) a felony of the second degree if the number of
abuse units of the controlled substance is 80 or more but fewer than
4,000;
(4) a felony of the first degree if the number of abuse
units of the controlled substance is 4,000 or more but fewer than
8,000; and
(5) 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 15 years and a fine not to exceed $250,000, if the
number of abuse units of the controlled substance is 8,000 or more.
(b-1) An offense punishable under Subsection (b)(1) is a
state jail felony if the person has been previously convicted of an
offense under this section or Section 481.115, 481.116, 481.1161,
481.117, 481.118, or 481.121.
(d) The defense to prosecution provided by Subsection (c) 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) or (b-2),
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),
481.125(a), 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), 481.116(f), 481.1161(c),
481.117(f), 481.118(f), 481.119(c), 481.121(c), 481.125(g),
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.
SECTION 3. Section 481.116, Health and Safety Code, is
amended by amending Subsections (b) and (g) and adding Subsection
(b-1) to read as follows:
(b) Except as provided by Subsection (b-1), an [An] offense
under Subsection (a) is a Class A misdemeanor with a minimum term of
confinement of 180 days [state jail felony] if the amount of the
controlled substance possessed is, by aggregate weight, including
adulterants or dilutants, less than one gram.
(b-1) An offense punishable under Subsection (b) is a state
jail felony if the person has been previously convicted of an
offense under this section or Section 481.115, 481.1151, 481.1161,
481.117, 481.118, or 481.121.
(g) The defense to prosecution provided by Subsection (f) 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) or (b-2),
481.1151(b)(1), 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),
481.125(a), 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), 481.1161(c),
481.117(f), 481.118(f), 481.119(c), 481.121(c), 481.125(g),
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.
SECTION 4. Section 481.1161(d), Health and Safety Code, is
amended to read as follows:
(d) The defense to prosecution provided by Subsection (c) 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) or (b-2),
481.1151(b)(1), 481.116(b), 481.117(b), 481.118(b), or
481.121(b)(1) or (2), or an offense under Section 481.119(b),
481.125(a), 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),
481.117(f), 481.118(f), 481.119(c), 481.121(c), 481.125(g),
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.
SECTION 5. Section 481.117(g), Health and Safety Code, is
amended to read as follows:
(g) The defense to prosecution provided by Subsection (f) 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) or (b-2),
481.1151(b)(1), 481.116(b), 481.1161(b)(1) or (2), 481.118(b), or
481.121(b)(1) or (2), or an offense under Section 481.119(b),
481.125(a), 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), 481.118(f), 481.119(c), 481.121(c), 481.125(g),
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.
SECTION 6. Section 481.118(g), Health and Safety Code, is
amended to read as follows:
(g) The defense to prosecution provided by Subsection (f) 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) or (b-2),
481.1151(b)(1), 481.116(b), 481.1161(b)(1) or (2), 481.117(b), or
481.121(b)(1) or (2), or an offense under Section 481.119(b),
481.125(a), 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), 481.119(c), 481.121(c), 481.125(g),
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.
SECTION 7. Section 481.119(d), Health and Safety Code, is
amended to read as follows:
(d) The defense to prosecution provided by Subsection (c) 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) or (b-2),
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
481.125(a), 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), 481.121(c), 481.125(g),
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.
SECTION 8. Section 481.121(d), Health and Safety Code, is
amended to read as follows:
(d) The defense to prosecution provided by Subsection (c) 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) or (b-2),
481.1151(b)(1), 481.116(b), 481.1161(b)(1) or (2), 481.117(b), or
481.118(b), or an offense under Section 481.119(b), 481.125(a),
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), 481.125(g),
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.
SECTION 9. Section 481.125(h), Health and Safety Code, is
amended to read as follows:
(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) or (b-2),
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.
SECTION 10. Sections 481.134(d) and (e), Health and Safety
Code, are amended to read as follows:
(d) An offense otherwise punishable under Section
481.112(b), 481.1121(b)(1), 481.113(b), 481.114(b), 481.115(b-1)
or (b-2) [481.115(b)], 481.1151(b-1) [481.1151(b)(1)],
481.116(b-1) [481.116(b)], 481.1161(b)(3), 481.120(b)(3), or
481.121(b)(3) is a felony of the third degree if it is shown on the
trial of the offense that the offense was committed:
(1) in, on, or within 1,000 feet of any real property
that is owned, rented, or leased to a school or school board, the
premises of a public or private youth center, or a playground;
(2) on a school bus; or
(3) by any unauthorized person 18 years of age or
older, in, on, or within 1,000 feet of premises owned, rented, or
leased by a general residential operation operating as a
residential treatment center.
(e) An offense otherwise punishable under Section
481.115(b), 481.1151(b)(1), 481.116(b), 481.117(b), 481.119(a),
481.120(b)(2), or 481.121(b)(2) is a state jail felony if it is
shown on the trial of the offense that the offense was committed:
(1) in, on, or within 1,000 feet of any real property
that is owned, rented, or leased to a school or school board, the
premises of a public or private youth center, or a playground;
(2) on a school bus; or
(3) by any unauthorized person 18 years of age or
older, in, on, or within 1,000 feet of premises owned, rented, or
leased by a general residential operation operating as a
residential treatment center.
SECTION 11. Section 483.041(f), Health and Safety Code, is
amended to read as follows:
(f) The defense to prosecution provided by Subsection (e) 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) or (b-2),
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), 481.125(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 481 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),
481.125(g), 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.
SECTION 12. Section 485.031(d), Health and Safety Code, is
amended to read as follows:
(d) The defense to prosecution provided by Subsection (c) 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) or (b-2),
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), 481.125(a), or 483.041(a);
(2) the actor has been previously convicted of or
placed on deferred adjudication community supervision for an
offense under this chapter or Chapter 481 or 483;
(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),
481.125(g), or 483.041(e); 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.
SECTION 13. Subchapter K, Chapter 42A, Code of Criminal
Procedure, is amended by adding Article 42A.518 to read as follows:
Art. 42A.518. COMMUNITY SUPERVISION FOR CERTAIN DRUG
OFFENSES; EDUCATIONAL PROGRAM. A judge who grants community
supervision to a person convicted of a Class A misdemeanor under
Section 481.115(b), 481.1151(b)(1), 481.116(b), or 481.1161(b)(2),
Health and Safety Code, may require, as a condition of community
supervision, that the person successfully complete an educational
program on substance abuse awareness approved by the Texas
Department of Licensing and Regulation.
SECTION 14. Articles 42A.551(a) and (c), Code of Criminal
Procedure, are amended to read as follows:
(a) Except as otherwise provided by Subsection (b) or (c),
on conviction of a state jail felony under Section 481.115(b-1) or
(b-2) [481.115(b)], 481.1151(b-1) [481.1151(b)(1)], 481.116(b-1)
[481.116(b)], 481.1161(b)(3), 481.121(b)(3), or 481.129(g)(1),
Health and Safety Code, that is punished under Section 12.35(a),
Penal Code, the judge shall suspend the imposition of the sentence
and place the defendant on community supervision.
(c) Subsection (a) does not apply to a defendant who:
(1) under Section 481.1151(b-1) [481.1151(b)(1)],
Health and Safety Code, possessed more than five abuse units of the
controlled substance;
(2) under Section 481.1161(b)(3), Health and Safety
Code, possessed more than one pound, by aggregate weight, including
adulterants or dilutants, of the controlled substance; or
(3) under Section 481.121(b)(3), Health and Safety
Code, possessed more than one pound of marihuana.
SECTION 15. 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
governed by the law in effect on the date 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 was
committed before that date.
SECTION 16. This Act takes effect September 1, 2023.