88R863 JSC-D
By: Eckhardt S.B. No. 208
A BILL TO BE ENTITLED
AN ACT
relating to the criminal penalties for delivery and possession of
marihuana and citations given for those offenses.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 14.01, Code of Criminal Procedure, is
amended by adding Subsection (c) to read as follows:
(c) Notwithstanding Subsection (a) or (b), a peace officer
or any other person may not, without a warrant, arrest an offender
for a misdemeanor punishable by fine only under Section
481.120(b)(1) or 481.121(b)(1), Health and Safety Code.
SECTION 2. Article 14.03, Code of Criminal Procedure, is
amended by adding Subsection (i) to read as follows:
(i) Notwithstanding Subsection (a), (d), or (g), a peace
officer may not, without a warrant, arrest a person who only commits
an offense punishable by fine only under Section 481.120(b)(1) or
481.121(b)(1), Health and Safety Code.
SECTION 3. Article 14.06, Code of Criminal Procedure, is
amended by adding Subsections (b-1) and (b-2) and amending
Subsection (d) to read as follows:
(b-1) A peace officer who is charging a person with
committing an offense under Section 481.120(b)(1) or
481.121(b)(1), Health and Safety Code, may not arrest the person
and shall issue the person a citation as provided by Subsection (b).
(b-2) Subsection (b-1) does not apply to an officer making
an arrest for an offense other than an offense under Section
481.120(b)(1) or 481.121(b)(1), Health and Safety Code.
(d) Subsection (c) applies only to a person charged with
committing an offense under:
(1) Section 481.121, Health and Safety Code, if the
offense is punishable under Subsection (b)(1-a) [(b)(1)] or (2) of
that section;
(1-a) Section 481.1161, Health and Safety Code, if the
offense is punishable under Subsection (b)(1) or (2) of that
section;
(2) Section 28.03, Penal Code, if the offense is
punishable under Subsection (b)(2) of that section;
(3) Section 28.08, Penal Code, if the offense is
punishable under Subsection (b)(2) or (3) of that section;
(4) Section 31.03, Penal Code, if the offense is
punishable under Subsection (e)(2)(A) of that section;
(5) Section 31.04, Penal Code, if the offense is
punishable under Subsection (e)(2) of that section;
(6) Section 38.114, Penal Code, if the offense is
punishable as a Class B misdemeanor; or
(7) Section 521.457, Transportation Code.
SECTION 4. Article 42A.551(c), Code of Criminal Procedure,
is amended to read as follows:
(c) Subsection (a) does not apply to a defendant who:
(1) under Section 481.1151(b)(1), Health and Safety
Code, possessed more than five abuse units of the controlled
substance; or
(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 5. Section 411.0728(a), Government Code, is amended
to read as follows:
(a) This section applies only to a person:
(1) who is convicted of or placed on deferred
adjudication community supervision for an offense under:
(A) Section 481.120, Health and Safety Code, if
the offense is punishable under Subsection (b)(1-a) [(b)(1)];
(B) Section 481.121, Health and Safety Code, if
the offense is punishable under Subsection (b)(1-a) [(b)(1)];
(C) Section 31.03, Penal Code, if the offense is
punishable under Subsection (e)(1) or (2); or
(D) Section 43.02, Penal Code; and
(2) who, if requested by the applicable law
enforcement agency or prosecuting attorney to provide assistance in
the investigation or prosecution of an offense under Section
20A.02, 20A.03, or 43.05, Penal Code, or a federal offense
containing elements that are substantially similar to the elements
of an offense under any of those sections:
(A) provided assistance in the investigation or
prosecution of the offense; or
(B) did not provide assistance in the
investigation or prosecution of the offense due to the person's age
or a physical or mental disability resulting from being a victim of
an offense described by this subdivision.
SECTION 6. Section 481.115(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 481.1151(b)(1),
481.116(b), 481.1161(b)(1) or (2), 481.117(b), 481.118(b), or
481.121(b)(1), (1-a), 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 481.1151(c), 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 7. Section 481.1151(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),
481.116(b), 481.1161(b)(1) or (2), 481.117(b), 481.118(b), or
481.121(b)(1), (1-a), 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 8. 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),
481.1151(b)(1), 481.116(b), 481.117(b), 481.118(b), or
481.121(b)(1), (1-a), 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 9. 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),
481.1151(b)(1), 481.116(b), 481.1161(b)(1) or (2), 481.118(b), or
481.121(b)(1), (1-a), 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 10. 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),
481.1151(b)(1), 481.116(b), 481.1161(b)(1) or (2), 481.117(b), or
481.121(b)(1), (1-a), 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 11. 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),
481.1151(b)(1), 481.116(b), 481.1161(b)(1) or (2), 481.117(b),
481.118(b), or 481.121(b)(1), (1-a), 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 12. Section 481.120(b), Health and Safety Code, is
amended to read as follows:
(b) An offense under Subsection (a) is:
(1) a Class C [B] misdemeanor if the amount of
marihuana delivered is one-fourth ounce or less and the person
committing the offense does not receive remuneration for the
marihuana;
(1-a) [(2)] a Class B [A] misdemeanor if the amount of
marihuana delivered is one-fourth ounce or less and the person
committing the offense receives remuneration for the marihuana;
(2) [(3)] a Class A misdemeanor [state jail felony] if
the amount of marihuana delivered is five pounds or less but more
than one-fourth ounce;
(3) [(4)] a state jail felony [of the second degree]
if the amount of marihuana delivered is 50 pounds or less but more
than five pounds;
(4) [(5)] a felony of the second [first] degree if the
amount of marihuana delivered is 2,000 pounds or less but more than
50 pounds; and
(5) a felony of the first degree [(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 10 years, and a
fine not to exceed $100,000,] if the amount of marihuana delivered
is more than 2,000 pounds.
SECTION 13. Sections 481.121(a), (b), and (c), Health and
Safety Code, are amended to read as follows:
(a) Except as authorized by this chapter, a person commits
an offense if the person knowingly or intentionally possesses a
usable quantity of more than one ounce of marihuana.
(b) An offense under Subsection (a) is:
(1) a Class C [B] misdemeanor if the amount of
marihuana possessed is two ounces or less but more than one ounce;
(1-a) [(2)] a Class B [A] misdemeanor if the amount of
marihuana possessed is four ounces or less but more than two ounces;
(2) [(3)] a Class A misdemeanor [state jail felony] if
the amount of marihuana possessed is five pounds or less but more
than four ounces;
(3) [(4)] a state jail felony [of the third degree] if
the amount of marihuana possessed is 50 pounds or less but more than
5 pounds;
(4) [(5)] a felony of the third [second] degree if the
amount of marihuana possessed is 2,000 pounds or less but more than
50 pounds; and
(5) a felony of the second degree [(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.
(c) It is a defense to prosecution for an offense punishable
under Subsection (b)(1), (1-a), or (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 14. 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),
481.1151(b)(1), 481.116(b), 481.1161(b)(1) or (2), 481.117(b),
481.118(b), or 481.121(b)(1), (1-a), 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 15. Section 481.134(c), Health and Safety Code, as
amended by Chapters 584 (S.B. 768) and 807 (H.B. 1540), Acts of the
87th Legislature, Regular Session, 2021, is reenacted and amended
to read as follows:
(c) The minimum term of confinement or imprisonment for an
offense otherwise punishable under Section 481.112(c), (d), (e), or
(f), 481.1121(b)(2), (3), or (4), 481.1123(c), (d), (e), or (f),
481.113(c), (d), or (e), 481.114(c), (d), or (e), 481.115(c), (d),
(e), or (f) [481.115(c)-(f)], 481.1151(b)(2), (3), (4), or (5),
481.116(c), (d), or (e), 481.1161(b)(4), (5), or (6), 481.117(c),
(d), or (e), 481.118(c), (d), or (e), 481.120(b)(4) or[,] (5), [or
(6),] or 481.121(b)(4) or[,] (5)[, or (6)] is increased by five
years and the maximum fine for the offense is doubled if it is shown
on the trial of the offense that the offense was committed:
(1) in, on, or within 1,000 feet of the premises of a
school, 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 16. Section 481.134(f), Health and Safety Code, is
amended to read as follows:
(f) An offense otherwise punishable under Section
481.118(b), 481.119(b), 481.120(b)(1-a) [481.120(b)(1)], or
481.121(b)(1-a) [481.121(b)(1)] is a Class A misdemeanor 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 17. 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),
481.1151(b)(1), 481.116(b), 481.1161(b)(1) or (2), 481.117(b),
481.118(b), or 481.121(b)(1), (1-a), 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 18. 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),
481.1151(b)(1), 481.116(b), 481.1161(b)(1) or (2), 481.117(b),
481.118(b), or 481.121(b)(1), (1-a), 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 19. Section 71.023(a), Penal Code, is amended to
read as follows:
(a) A person commits an offense if the person, as part of the
identifiable leadership of a criminal street gang, knowingly
finances, directs, or supervises the commission of, or a conspiracy
to commit, one or more of the following offenses by members of a
criminal street gang:
(1) a felony offense that is listed in Article
42A.054(a), Code of Criminal Procedure;
(2) a felony offense for which it is shown that a
deadly weapon, as defined by Section 1.07, was used or exhibited
during the commission of the offense or during immediate flight
from the commission of the offense; or
(3) an offense that is punishable under Section
481.112(e) or (f), 481.1121(b)(4), 481.1123(d), (e), or (f), or
481.115(f), [or 481.120(b)(6),] Health and Safety Code.
SECTION 20. (a) Except as otherwise provided by this
section, the changes in law made by this Act apply 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 occurred before that date.
(b) Sections 481.120, 481.121, and 481.134, Health and
Safety Code, as amended by this Act, apply to an offense committed
under Section 481.120 or 481.121, or an offense committed under
Section 481.120 or 481.121 and punishable under Section 481.134,
before, on, or after September 1, 2023, except that a final
conviction for an offense that exists on September 1, 2023, is
unaffected by this Act.
SECTION 21. To the extent of any conflict, this Act prevails
over another Act of the 88th Legislature, Regular Session, 2023,
relating to nonsubstantive additions to and corrections in enacted
codes.
SECTION 22. This Act takes effect September 1, 2023.