By: Huffman, et al. S.B. No. 645
A BILL TO BE ENTITLED
AN ACT
relating to the designation of fentanyl poisoning for purposes of
the death certificate and to the criminal penalties for certain
controlled substance offenses; increasing a criminal penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 193.005, Health and Safety Code, is
amended by adding Subsection (e-1) to read as follows:
(e-1) The medical certification on a death certificate must
include the term "Fentanyl Poisoning" if:
(1) a toxicology examination reveals a controlled
substance listed in Penalty Group 1-B present in the body of the
decedent in an amount or concentration that is considered to be
lethal by generally accepted scientific standards; and
(2) the results of an autopsy performed on the
decedent are consistent with an opioid overdose as the cause of
death.
SECTION 2. Section 481.102, Health and Safety Code, is
amended to read as follows:
Sec. 481.102. PENALTY GROUP 1. Penalty Group 1 consists
of:
(1) the following opiates, including their isomers,
esters, ethers, salts, and salts of isomers, esters, and ethers,
unless specifically excepted, if the existence of these isomers,
esters, ethers, and salts is possible within the specific chemical
designation:
[Alfentanil;]
Allylprodine;
Alphacetylmethadol;
Benzethidine;
Betaprodine;
Clonitazene;
Diampromide;
Diethylthiambutene;
Difenoxin not listed in Penalty Group 3 or 4;
Dimenoxadol;
Dimethylthiambutene;
Dioxaphetyl butyrate;
Dipipanone;
Ethylmethylthiambutene;
Etonitazene;
Etoxeridine;
Furethidine;
Hydroxypethidine;
Ketobemidone;
Levophenacylmorphan;
Meprodine;
Methadol;
Moramide;
Morpheridine;
Noracymethadol;
Norlevorphanol;
Normethadone;
Norpipanone;
Phenadoxone;
Phenampromide;
Phenomorphan;
Phenoperidine;
Piritramide;
Proheptazine;
Properidine;
Propiram;
[Sufentanil;]
Tilidine; and
Trimeperidine;
(2) the following opium derivatives, their salts,
isomers, and salts of isomers, unless specifically excepted, if the
existence of these salts, isomers, and salts of isomers is possible
within the specific chemical designation:
Acetorphine;
Acetyldihydrocodeine;
Benzylmorphine;
Codeine methylbromide;
Codeine-N-Oxide;
Cyprenorphine;
Desomorphine;
Dihydromorphine;
Drotebanol;
Etorphine, except hydrochloride salt;
Heroin;
Hydromorphinol;
Methyldesorphine;
Methyldihydromorphine;
Monoacetylmorphine;
Morphine methylbromide;
Morphine methylsulfonate;
Morphine-N-Oxide;
Myrophine;
Nicocodeine;
Nicomorphine;
Normorphine;
Pholcodine; and
Thebacon;
(3) the following substances, however produced,
except those narcotic drugs listed in another group:
(A) Opium and opiate not listed in Penalty Group
3 or 4, and a salt, compound, derivative, or preparation of opium or
opiate, other than thebaine derived butorphanol, nalmefene and its
salts, naloxone and its salts, and naltrexone and its salts, but
including:
Codeine not listed in Penalty Group 3 or 4;
Dihydroetorphine;
Ethylmorphine not listed in Penalty Group 3
or 4;
Granulated opium;
Hydrocodone not listed in Penalty Group 3;
Hydromorphone;
Metopon;
Morphine not listed in Penalty Group 3;
Opium extracts;
Opium fluid extracts;
Oripavine;
Oxycodone;
Oxymorphone;
Powdered opium;
Raw opium;
Thebaine; and
Tincture of opium;
(B) a salt, compound, isomer, derivative, or
preparation of a substance that is chemically equivalent or
identical to a substance described by Paragraph (A), other than the
isoquinoline alkaloids of opium;
(C) Opium poppy and poppy straw;
(D) Cocaine, including:
(i) its salts, its optical, position, and
geometric isomers, and the salts of those isomers;
(ii) coca leaves and a salt, compound,
derivative, or preparation of coca leaves; and
(iii) a salt, compound, derivative, or
preparation of a salt, compound, or derivative that is chemically
equivalent or identical to a substance described by Subparagraph
(i) or (ii), other than decocainized coca leaves or extractions of
coca leaves that do not contain cocaine or ecgonine; and
(E) concentrate of poppy straw, meaning the crude
extract of poppy straw in liquid, solid, or powder form that
contains the phenanthrine alkaloids of the opium poppy;
(4) the following opiates, including their isomers,
esters, ethers, salts, and salts of isomers, if the existence of
these isomers, esters, ethers, and salts is possible within the
specific chemical designation:
[Acetyl-alpha-methylfentanyl (N-[1-(1-methyl-2-
phenethyl)-4-piperidinyl]-N-phenylacetamide);
[Alpha-methylthiofentanyl (N-[1-methyl-2-(2-
thienyl)ethyl-4-piperidinyl]-N-phenylpropanamide);]
Alphaprodine;
Anileridine;
[Beta-hydroxyfentanyl (N-[1-(2-hydroxy-2-
phenethyl)-4-piperidinyl] -N-phenylpropanamide);
[Beta-hydroxy-3-methylfentanyl;]
Bezitramide;
[Carfentanil;]
Dihydrocodeine not listed in Penalty Group 3 or 4;
Diphenoxylate not listed in Penalty Group 3 or 4;
Isomethadone;
Levomethorphan;
Levorphanol;
Metazocine;
Methadone;
Methadone-Intermediate, 4-cyano-2-dimethylamino-
4, 4-diphenyl butane;
[3-methylfentanyl(N-[3-methyl-1-(2-phenylethyl)-
4-piperidyl]-N-phenylpropanamide);
[3-methylthiofentanyl(N-[3-methyl-1-(2-thienyl)
ethyl-4-piperidinyl]-N-phenylpropanamide);]
Moramide-Intermediate, 2-methyl-3-morpholino-1,
1-diphenyl-propane-carboxylic acid;
[Para-fluorofentanyl(N-(4-fluorophenyl)-N-1-(2-
phenylethyl)-4-piperidinylpropanamide);]
PEPAP (1-(2-phenethyl)-4-phenyl-4-
acetoxypiperidine);
Pethidine (Meperidine);
Pethidine-Intermediate-A, 4-cyano-1-methyl-4-
phenylpiperidine;
Pethidine-Intermediate-B, ethyl-4-
phenylpiperidine-4 carboxylate;
Pethidine-Intermediate-C, 1-methyl-4-
phenylpiperidine-4-carboxylic acid;
Phenazocine;
Piminodine;
Racemethorphan; and
Racemorphan;
[Remifentanil; and
[Thiofentanyl(N-phenyl-N-[1-(2-thienyl)ethyl-4-
piperidinyl]-propanamide);]
(5) Flunitrazepam (trade or other name: Rohypnol);
(6) Methamphetamine, including its salts, optical
isomers, and salts of optical isomers;
(7) Phenylacetone and methylamine, if possessed
together with intent to manufacture methamphetamine;
(8) Phencyclidine, including its salts;
(9) Gamma hydroxybutyric acid (some trade or other
names: gamma hydroxybutyrate, GHB), including its salts;
(10) Ketamine;
(11) Phenazepam;
(12) U-47700;
(13) AH-7921;
(14) ADB-FUBINACA;
(15) AMB-FUBINACA; and
(16) MDMB-CHMICA.
SECTION 3. Section 481.1022, Health and Safety Code, is
amended to read as follows:
Sec. 481.1022. PENALTY GROUP 1-B. Penalty Group 1-B
consists of the following opiates, including their isomers, esters,
ethers, salts, and salts of isomers, esters, and ethers, if the
existence of these isomers, esters, ethers, and salts is possible
within the specific chemical designation:
Acetyl-alpha-methylfentanyl (N-[1-(1-methyl-2-
phenethyl)-4-piperidinyl]-N-phenylacetamide);
Alfentanil;
Alpha-methylthiofentanyl (N-[1-methyl-2-(2-
thienyl)ethyl-4-piperidinyl]-N-phenylpropanamide);
Beta-hydroxyfentanyl (N-[1-(2-hydroxy-2-
phenethyl)-4-piperidinyl] -N-phenylpropanamide);
Beta-hydroxy-3-methylfentanyl;
Carfentanil;
Fentanyl [fentanyl], alpha-methylfentanyl, and
any other derivative of fentanyl;
3-methylfentanyl(N-[3-methyl-1-(2-phenylethyl)-
4-piperidyl]-N-phenylpropanamide);
3-methylthiofentanyl(N-[3-methyl-1-(2-thienyl)
ethyl-4-piperidinyl]-N-phenylpropanamide);
Para-fluorofentanyl(N-(4-fluorophenyl)-N-1-(2-
phenylethyl)-4-piperidinylpropanamide);
Remifentanil;
Sufentanil; and
Thiofentanyl(N-phenyl-N-[1-(2-thienyl)ethyl-4-
piperidinyl]-propanamide).
SECTION 4. Sections 481.112(e) and (f), Health and Safety
Code, are amended to read as follows:
(e) An offense under Subsection (a) is a felony of the first
degree 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 the controlled substance to which the offense applies is, by
aggregate weight, including adulterants or dilutants, 200 grams or
more but less than 400 grams.
(f) An offense under Subsection (a) is a felony of the first
degree 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 amount
of the controlled substance to which the offense applies is, by
aggregate weight, including adulterants or dilutants, 400 grams or
more.
SECTION 5. Section 481.1121(b), Health and Safety Code, is
amended to read as follows:
(b) An offense under this section is:
(1) a state jail felony if the number of abuse units of
the controlled substance is fewer than 20;
(2) a felony of the second degree if the number of
abuse units of the controlled substance is 20 or more but fewer than
80;
(3) a felony of the first degree if the number of abuse
units of the controlled substance is 80 or more but fewer than
4,000; and
(4) a felony of the first degree 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 4,000 or more.
SECTION 6. Sections 481.1123(b), (d), (e), and (f), Health
and Safety Code, are amended to read as follows:
(b) An offense under Subsection (a) is a [state jail] felony
of the third degree if the amount of the controlled substance to
which the offense applies is, by aggregate weight, including
adulterants or dilutants, less than one gram.
(d) An offense under Subsection (a) is a felony of the first
degree 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 $20,000, if the amount
of the controlled substance to which the offense applies is, by
aggregate weight, including adulterants or dilutants, four grams or
more but less than 200 grams.
(e) An offense under Subsection (a) is a felony of the first
degree 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 $200,000, if the amount
of the controlled substance to which the offense applies is, by
aggregate weight, including adulterants or dilutants, 200 grams or
more but less than 400 grams.
(f) An offense under Subsection (a) is a felony of the first
degree 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 20 years, and a fine not to exceed $500,000, if the amount
of the controlled substance to which the offense applies is, by
aggregate weight, including adulterants or dilutants, 400 grams or
more.
SECTION 7. Section 481.113(e), Health and Safety Code, is
amended to read as follows:
(e) An offense under Subsection (a) is a felony of the first
degree 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 the controlled substance to which the offense applies is, by
aggregate weight, including adulterants or dilutants, 400 grams or
more.
SECTION 8. Section 481.114(e), Health and Safety Code, is
amended to read as follows:
(e) An offense under Subsection (a) is a felony of the first
degree 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 the controlled substance to which the offense applies is, by
aggregate weight, including any adulterants or dilutants, 400 grams
or more.
SECTION 9. Section 481.115(f), Health and Safety Code, is
amended to read as follows:
(f) An offense under Subsection (a) is a felony of the first
degree 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 the controlled substance possessed is, by aggregate weight,
including adulterants or dilutants, 400 grams or more.
SECTION 10. Section 481.1151(b), Health and Safety Code, is
amended to read as follows:
(b) An offense under this section is:
(1) a state jail felony if the number of abuse units of
the controlled substance is fewer than 20;
(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) a felony of the first degree 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.
SECTION 11. Section 481.116(e), Health and Safety Code, is
amended to read as follows:
(e) An offense under Subsection (a) is a felony of the first
degree 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 five years, and a fine not to exceed $50,000, if the
amount of the controlled substance possessed is, by aggregate
weight, including adulterants or dilutants, 400 grams or more.
SECTION 12. Section 481.1161(b), Health and Safety Code, is
amended to read as follows:
(b) An offense under this section is:
(1) a Class B misdemeanor if the amount of the
controlled substance possessed is, by aggregate weight, including
adulterants or dilutants, two ounces or less;
(2) a Class A misdemeanor if the amount of the
controlled substance possessed is, by aggregate weight, including
adulterants or dilutants, four ounces or less but more than two
ounces;
(3) a state jail felony if the amount of the controlled
substance possessed is, by aggregate weight, including adulterants
or dilutants, five pounds or less but more than four ounces;
(4) a felony of the third degree if the amount of the
controlled substance possessed is, by aggregate weight, including
adulterants or dilutants, 50 pounds or less but more than 5 pounds;
(5) a felony of the second degree if the amount of the
controlled substance possessed is, by aggregate weight, including
adulterants or dilutants, 2,000 pounds or less but more than 50
pounds; and
(6) a felony of the first degree 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 the controlled
substance possessed is, by aggregate weight, including adulterants
or dilutants, more than 2,000 pounds.
SECTION 13. Section 481.117(e), Health and Safety Code, is
amended to read as follows:
(e) An offense under Subsection (a) is a felony of the first
degree 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 five years, and a fine not to exceed $50,000, if the
amount of the controlled substance possessed is, by aggregate
weight, including adulterants or dilutants, 400 grams or more.
SECTION 14. Section 481.118(e), Health and Safety Code, is
amended to read as follows:
(e) An offense under Subsection (a) is a felony of the first
degree 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 five years, and a fine not to exceed $50,000, if the
amount of the controlled substance possessed is, by aggregate
weight, including adulterants or dilutants, 400 grams or more.
SECTION 15. Section 481.120(b), Health and Safety Code, is
amended to read as follows:
(b) An offense under Subsection (a) is:
(1) a Class 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;
(2) a Class 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;
(3) a state jail felony if the amount of marihuana
delivered is five pounds or less but more than one-fourth ounce;
(4) a felony of the second degree if the amount of
marihuana delivered is 50 pounds or less but more than five pounds;
(5) a felony of the first degree if the amount of
marihuana delivered is 2,000 pounds or less but more than 50 pounds;
and
(6) a felony of the first degree 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 16. Section 481.121(b), Health and Safety Code, is
amended to read as follows:
(b) An offense under Subsection (a) is:
(1) a Class B misdemeanor if the amount of marihuana
possessed is two ounces or less;
(2) a Class A misdemeanor if the amount of marihuana
possessed is four ounces or less but more than two ounces;
(3) a state jail felony if the amount of marihuana
possessed is five pounds or less but more than four ounces;
(4) a felony of the third degree if the amount of
marihuana possessed is 50 pounds or less but more than 5 pounds;
(5) a felony of the second degree if the amount of
marihuana possessed is 2,000 pounds or less but more than 50 pounds;
and
(6) a felony of the first degree 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.
SECTION 17. Section 481.126(a), Health and Safety Code, is
amended to read as follows:
(a) A person commits an offense if the person:
(1) barters property or expends funds the person knows
are derived from the commission of a first degree felony [an]
offense under this chapter punishable by imprisonment in the Texas
Department of Criminal Justice for life;
(2) barters property or expends funds the person knows
are derived from the commission of an offense under Section
481.121(a) that is punishable under Section 481.121(b)(5);
(3) barters property or finances or invests funds the
person knows or believes are intended to further the commission of
an offense for which the punishment is described by Subdivision
(1); or
(4) barters property or finances or invests funds the
person knows or believes are intended to further the commission of
an offense under Section 481.121(a) that is punishable under
Section 481.121(b)(5).
SECTION 18. 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(b), (c) [481.1123(c)],
(d), (e), or (f), 481.113(c), (d), or (e), 481.114(c), (d), or (e),
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), (5), or (6), or
481.121(b)(4), (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 19. Section 481.141, Health and Safety Code, is
amended by adding Subsection (d) to read as follows:
(d) Punishment may not be increased under this section if
the defendant is also prosecuted under Section 19.02(b)(4), Penal
Code, for conduct occurring during the same criminal episode.
SECTION 20. Section 19.02, Penal Code, is amended by
amending Subsection (b) and adding Subsection (e) to read as
follows:
(b) A person commits an offense if the person [he]:
(1) intentionally or knowingly causes the death of an
individual;
(2) intends to cause serious bodily injury and commits
an act clearly dangerous to human life that causes the death of an
individual; [or]
(3) commits or attempts to commit a felony, other than
manslaughter, and in the course of and in furtherance of the
commission or attempt, or in immediate flight from the commission
or attempt, the person [he] commits or attempts to commit an act
clearly dangerous to human life that causes the death of an
individual; or
(4) knowingly manufactures or delivers a controlled
substance listed in Penalty Group 1-B under Section 481.1022,
Health and Safety Code, in violation of Section 481.1123, Health
and Safety Code, and an individual dies as a result of injecting,
ingesting, inhaling, or introducing into the individual's body any
amount of the controlled substance manufactured or delivered by the
actor, regardless of whether the controlled substance was used by
itself or with another substance, including a drug, adulterant, or
dilutant.
(e) It is a defense to prosecution under Subsection (b)(4)
that the actor's conduct in manufacturing or delivering the
controlled substance was authorized under Chapter 481, Health and
Safety Code, or other state or federal law.
SECTION 21. Section 71.02(a), Penal Code, is amended to
read as follows:
(a) A person commits an offense if, with the intent to
establish, maintain, or participate in a combination or in the
profits of a combination or as a member of a criminal street gang,
the person commits or conspires to commit one or more of the
following:
(1) murder, capital murder, arson, aggravated
robbery, robbery, burglary, theft, aggravated kidnapping,
kidnapping, aggravated assault, aggravated sexual assault, sexual
assault, continuous sexual abuse of young child or disabled
individual, solicitation of a minor, forgery, deadly conduct,
assault punishable as a Class A misdemeanor, burglary of a motor
vehicle, or unauthorized use of a motor vehicle;
(2) any gambling offense punishable as a Class A
misdemeanor;
(3) promotion of prostitution, aggravated promotion
of prostitution, or compelling prostitution;
(4) unlawful manufacture, transportation, repair, or
sale of firearms or prohibited weapons;
(5) unlawful manufacture, delivery, dispensation, or
distribution of a controlled substance or dangerous drug, or
unlawful possession of a controlled substance or dangerous drug
through forgery, fraud, misrepresentation, or deception;
(5-a) causing the unlawful delivery, dispensation, or
distribution of a controlled substance or dangerous drug in
violation of Subtitle B, Title 3, Occupations Code;
(5-b) unlawful possession with intent to deliver a
controlled substance listed in Penalty Group 1-B under Section
481.1022, Health and Safety Code;
(6) any unlawful wholesale promotion or possession of
any obscene material or obscene device with the intent to wholesale
promote the same;
(7) any offense under Subchapter B, Chapter 43,
depicting or involving conduct by or directed toward a child
younger than 18 years of age;
(8) any felony offense under Chapter 32;
(9) any offense under Chapter 36;
(10) any offense under Chapter 34, 35, or 35A;
(11) any offense under Section 37.11(a);
(12) any offense under Chapter 20A;
(13) any offense under Section 37.10;
(14) any offense under Section 38.06, 38.07, 38.09, or
38.11;
(15) any offense under Section 42.10;
(16) any offense under Section 46.06(a)(1) or 46.14;
(17) any offense under Section 20.05 or 20.06;
(18) any offense under Section 16.02; or
(19) any offense classified as a felony under the Tax
Code.
SECTION 22. The change in law made by this Act to Section
193.005, Health and Safety Code, applies only to a death that occurs
on or after the effective date of this Act, or a death that occurs
before that date but is discovered on or after the effective date of
this Act.
SECTION 23. The changes in law made by this Act to Chapter
481, Health and Safety Code, and Sections 19.02 and 71.02, Penal
Code, 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.
SECTION 24. 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 25. This Act takes effect September 1, 2023.