BILL ANALYSIS Senate Research Center S.B. 1869 89R7628 CJD-F By: Perry Health & Human Services 3/28/2025 As Filed AUTHOR'S / SPONSOR'S STATEMENT OF INTENT The commissioner of the Department of State Health Services (DSHS), has the authority to designate, reschedule, or delete a substance from the schedules of controlled substances. Substances with the highest abuse, and potential for psychological or physical dependence, are placed in Schedule I, and those with the lowest abuse potential are placed in Schedule V. The proposed legislation seeks to clarify that the legislature has granted the commissioner the authority to administer the schedules as needed to promote public health and safety. In particular, the bill reaffirms that the commissioner's establishment or modification of the schedules is not subject to rulemaking and that the commissioner's decisions are final and binding unless altered by the legislature. This legislation will ensure that the commissioner can make timely decisions regarding the schedules of controlled substances. As proposed, S.B. 1869 amends current law relating to the procedures for modifying the schedules of controlled substances. RULEMAKING AUTHORITY Rulemaking authority is expressly granted to the commissioner of state health services or the commissioner's designee in SECTION 2 (Section 481.038, Health and Safety Code) of this bill. SECTION BY SECTION ANALYSIS SECTION 1. Amends Section 481.034, Health and Safety Code, by amending Subsections (a), (b), (d), and (g) and adding Subsections (a-1) and (c-1), as follows: (a) Requires the commissioner of state health services or the commissioner's designee (commissioner) to at least annually establish the schedules of controlled substances. Requires that these schedules, rather than these annual schedules, include the complete list of all controlled substances from the previous schedules and modifications in the federal schedules of controlled substances under Subsection (g). Creates an exception under Subsection (g). Makes a nonsubstantive change. (a-1) Provides that a decision or modification to the schedules made by the commissioner under Subsection (a) is final and binding, unless altered by statute. (b) Makes a conforming change to this subsection. (c-1) Provides that, for purposes of Subsection (c) (relating to prohibiting the commissioner from adding, deleting, or rescheduling a substance from the schedule under certain circumstances), an action by the legislature in adding a controlled substance to, or removing a controlled substance from, a penalty group does not change or require the commissioner to change the schedule of the controlled substance. (d) Requires the commissioner, in making a determination regarding a substance, other than a determination under Subsection (g), to consider and make findings with respect to each of certain factors. (g) Provides that, except as otherwise provided by this subsection, if a substance is designated, rescheduled, deleted, or subject to any change, including by ministerial edit or conforming amendment, as a controlled substance under federal law and notice of that fact is given to the commissioner, the commissioner similarly is required to control the substance under Chapter 481 (Texas Controlled Substances Act) unless the commissioner objects. Provides that, after the expiration of a 90-day, rather than 30-day, period beginning on the day after the date of publication in the Federal Register of a final order designating a substance as a controlled substance, rescheduling or deleting a substance, or otherwise changing a substance with respect to the federal schedules, the commissioner similarly is required to designate, reschedule, delete, or change the scheduling of the substance, unless the commissioner objects during the period. Requires the commissioner, if the commissioner objects, to publish the reasons for the objection, the commissioner's decision, and any resulting modifications to the schedules which are final and binding unless altered by statute. Authorizes the commissioner to control the substance under this chapter similarly to the manner in which the substance is controlled under federal law or control the substance under this chapter in a manner determined appropriate by the commissioner. Deletes existing text requiring the commissioner, if the commissioner objects, to publish the reasons for the objection and give all interested parties an opportunity to be heard. Deletes existing text requiring the commissioner, at the conclusion of the hearing, to publish a decision, which is final unless altered by statute. SECTION 2. Amends Subchapter B, Chapter 481, Health and Safety Code, by adding Sections 481.038 and 481.039, as follows: Sec. 481.038. INTERPRETATION OF SUBCHAPTER. (a) Provides that the commissioner is required to manage the schedules of controlled substances under Subchapter B (Schedules) and is authorized to: (1) adopt, for the administration of schedules, written rules, policies, or guidelines; (2) interpret and construe this subchapter; (3) correct a defect, supply an omission, and reconcile an inconsistency that appears in this subchapter in a manner and to the extent that the commissioner considers expedient to administer this subchapter for the protection of public health and safety; (4) determine all questions, whether legal or factual, relating to this subchapter to promote the uniform administration of this subchapter for the benefit of public health and safety; and (5) establish and maintain records necessary or appropriate for the proper administration of this subchapter. (b) Provides that the determination of a fact or finding by the commissioner, a final order or schedule modification issued by the commissioner, an action taken by the commissioner, or the commissioner's interpretation of this subchapter is final and binding. (c) Provides that, except as provided by Section 481.034(c), if the determination of a fact or finding by the commissioner, a final order or schedule modification issued by the commissioner, an action taken by the commissioner, or the commissioner's interpretation of this subchapter conflicts with other law, the commissioner's determination, issuance, action, or interpretation prevails. Sec. 481.039. SCHEDULING AND RELATED ACTIONS BY COMMISSIONER NOT SUBJECT TO JUDICIAL REVIEW. (a) Provides that the legislature grants the commissioner broad authority to administer this subchapter in an effort to promote public health and safety. Prohibits a court from substituting the court's judgment for the judgment of the commissioner regarding this subchapter. Provides that a final order or schedule modification under this subchapter is final and binding. Provides that all actions, proceedings, and remedies related to this subchapter are granted solely to the commissioner and are authorized to be adjudicated at the commissioner's discretion. (b) Provides that an action taken by the commissioner under this subchapter does not waive sovereign immunity. (c) Requires a court to immediately dismiss a claim barred by this subchapter. (d) Entitles the state, on dismissal of a claim under Subsection (c), to recover court costs and attorney's fees from the claimant. (e) Entitles the state, if a claim is not immediately dismissed under Subsection (c) and the state prevails, to recover court costs and attorney's fees from the claimant. (f) Provides that an appeal of an action related to an act or omission by the commissioner under this subchapter is governed by the procedures for accelerated appeals in civil cases under the Texas Rules of Appellate Procedure. Requires the appellate court to render the court's final order or judgment with the least possible delay. SECTION 3. Amends Subchapter I, Chapter 2001, Government Code, by adding Section 2001.228, as follows: Sec. 2001.228. SCHEDULES OF CONTROLLED SUBSTANCES. (a) Provides that Chapter 2001 (Administrative Procedure) does not apply to an action taken by the Department of State Health Services, the Health and Human Services Commission, or the Department of Public Safety under Subchapter B, Chapter 481, Health and Safety Code, including the establishment or modification of the schedules of controlled substances under Section 481.034 (Establishment and Modification of Schedules by Commissioner), Health and Safety Code, or the emergency scheduling of controlled substances under Section 481.0355 (Emergency Scheduling; Legislative Report), Health and Safety Code. (b) Provides that a final order or schedule modification under Subchapter B, Chapter 481, Health and Safety Code, is not a rule for purposes of this chapter. SECTION 4. Repealer: Section 481.034(e) (relating to requiring the commissioner, after considering certain factors, to make findings with respect to those factors), Health and Safety Code. SECTION 5. Requires a state agency, if necessary for implementation of a provision of this Act, to request a waiver or authorization from a federal agency, and authorizes a delay of implementation until such a waiver or authorization is granted. SECTION 6. Severability clause. SECTION 7. Effective date: upon passage or September 1, 2025.
BILL ANALYSIS
Senate Research Center S.B. 1869
89R7628 CJD-F By: Perry
Health & Human Services
3/28/2025
As Filed
Senate Research Center
S.B. 1869
89R7628 CJD-F
By: Perry
Health & Human Services
3/28/2025
As Filed
AUTHOR'S / SPONSOR'S STATEMENT OF INTENT
The commissioner of the Department of State Health Services (DSHS), has the authority to designate, reschedule, or delete a substance from the schedules of controlled substances. Substances with the highest abuse, and potential for psychological or physical dependence, are placed in Schedule I, and those with the lowest abuse potential are placed in Schedule V.
The proposed legislation seeks to clarify that the legislature has granted the commissioner the authority to administer the schedules as needed to promote public health and safety. In particular, the bill reaffirms that the commissioner's establishment or modification of the schedules is not subject to rulemaking and that the commissioner's decisions are final and binding unless altered by the legislature. This legislation will ensure that the commissioner can make timely decisions regarding the schedules of controlled substances.
As proposed, S.B. 1869 amends current law relating to the procedures for modifying the schedules of controlled substances.
RULEMAKING AUTHORITY
Rulemaking authority is expressly granted to the commissioner of state health services or the commissioner's designee in SECTION 2 (Section 481.038, Health and Safety Code) of this bill.
SECTION BY SECTION ANALYSIS
SECTION 1. Amends Section 481.034, Health and Safety Code, by amending Subsections (a), (b), (d), and (g) and adding Subsections (a-1) and (c-1), as follows:
(a) Requires the commissioner of state health services or the commissioner's designee (commissioner) to at least annually establish the schedules of controlled substances. Requires that these schedules, rather than these annual schedules, include the complete list of all controlled substances from the previous schedules and modifications in the federal schedules of controlled substances under Subsection (g). Creates an exception under Subsection (g). Makes a nonsubstantive change.
(a-1) Provides that a decision or modification to the schedules made by the commissioner under Subsection (a) is final and binding, unless altered by statute.
(b) Makes a conforming change to this subsection.
(c-1) Provides that, for purposes of Subsection (c) (relating to prohibiting the commissioner from adding, deleting, or rescheduling a substance from the schedule under certain circumstances), an action by the legislature in adding a controlled substance to, or removing a controlled substance from, a penalty group does not change or require the commissioner to change the schedule of the controlled substance.
(d) Requires the commissioner, in making a determination regarding a substance, other than a determination under Subsection (g), to consider and make findings with respect to each of certain factors.
(g) Provides that, except as otherwise provided by this subsection, if a substance is designated, rescheduled, deleted, or subject to any change, including by ministerial edit or conforming amendment, as a controlled substance under federal law and notice of that fact is given to the commissioner, the commissioner similarly is required to control the substance under Chapter 481 (Texas Controlled Substances Act) unless the commissioner objects. Provides that, after the expiration of a 90-day, rather than 30-day, period beginning on the day after the date of publication in the Federal Register of a final order designating a substance as a controlled substance, rescheduling or deleting a substance, or otherwise changing a substance with respect to the federal schedules, the commissioner similarly is required to designate, reschedule, delete, or change the scheduling of the substance, unless the commissioner objects during the period. Requires the commissioner, if the commissioner objects, to publish the reasons for the objection, the commissioner's decision, and any resulting modifications to the schedules which are final and binding unless altered by statute. Authorizes the commissioner to control the substance under this chapter similarly to the manner in which the substance is controlled under federal law or control the substance under this chapter in a manner determined appropriate by the commissioner.
Deletes existing text requiring the commissioner, if the commissioner objects, to publish the reasons for the objection and give all interested parties an opportunity to be heard. Deletes existing text requiring the commissioner, at the conclusion of the hearing, to publish a decision, which is final unless altered by statute.
SECTION 2. Amends Subchapter B, Chapter 481, Health and Safety Code, by adding Sections 481.038 and 481.039, as follows:
Sec. 481.038. INTERPRETATION OF SUBCHAPTER. (a) Provides that the commissioner is required to manage the schedules of controlled substances under Subchapter B (Schedules) and is authorized to:
(1) adopt, for the administration of schedules, written rules, policies, or guidelines;
(2) interpret and construe this subchapter;
(3) correct a defect, supply an omission, and reconcile an inconsistency that appears in this subchapter in a manner and to the extent that the commissioner considers expedient to administer this subchapter for the protection of public health and safety;
(4) determine all questions, whether legal or factual, relating to this subchapter to promote the uniform administration of this subchapter for the benefit of public health and safety; and
(5) establish and maintain records necessary or appropriate for the proper administration of this subchapter.
(b) Provides that the determination of a fact or finding by the commissioner, a final order or schedule modification issued by the commissioner, an action taken by the commissioner, or the commissioner's interpretation of this subchapter is final and binding.
(c) Provides that, except as provided by Section 481.034(c), if the determination of a fact or finding by the commissioner, a final order or schedule modification issued by the commissioner, an action taken by the commissioner, or the commissioner's interpretation of this subchapter conflicts with other law, the commissioner's determination, issuance, action, or interpretation prevails.
Sec. 481.039. SCHEDULING AND RELATED ACTIONS BY COMMISSIONER NOT SUBJECT TO JUDICIAL REVIEW. (a) Provides that the legislature grants the commissioner broad authority to administer this subchapter in an effort to promote public health and safety. Prohibits a court from substituting the court's judgment for the judgment of the commissioner regarding this subchapter. Provides that a final order or schedule modification under this subchapter is final and binding. Provides that all actions, proceedings, and remedies related to this subchapter are granted solely to the commissioner and are authorized to be adjudicated at the commissioner's discretion.
(b) Provides that an action taken by the commissioner under this subchapter does not waive sovereign immunity.
(c) Requires a court to immediately dismiss a claim barred by this subchapter.
(d) Entitles the state, on dismissal of a claim under Subsection (c), to recover court costs and attorney's fees from the claimant.
(e) Entitles the state, if a claim is not immediately dismissed under Subsection (c) and the state prevails, to recover court costs and attorney's fees from the claimant.
(f) Provides that an appeal of an action related to an act or omission by the commissioner under this subchapter is governed by the procedures for accelerated appeals in civil cases under the Texas Rules of Appellate Procedure. Requires the appellate court to render the court's final order or judgment with the least possible delay.
SECTION 3. Amends Subchapter I, Chapter 2001, Government Code, by adding Section 2001.228, as follows:
Sec. 2001.228. SCHEDULES OF CONTROLLED SUBSTANCES. (a) Provides that Chapter 2001 (Administrative Procedure) does not apply to an action taken by the Department of State Health Services, the Health and Human Services Commission, or the Department of Public Safety under Subchapter B, Chapter 481, Health and Safety Code, including the establishment or modification of the schedules of controlled substances under Section 481.034 (Establishment and Modification of Schedules by Commissioner), Health and Safety Code, or the emergency scheduling of controlled substances under Section 481.0355 (Emergency Scheduling; Legislative Report), Health and Safety Code.
(b) Provides that a final order or schedule modification under Subchapter B, Chapter 481, Health and Safety Code, is not a rule for purposes of this chapter.
SECTION 4. Repealer: Section 481.034(e) (relating to requiring the commissioner, after considering certain factors, to make findings with respect to those factors), Health and Safety Code.
SECTION 5. Requires a state agency, if necessary for implementation of a provision of this Act, to request a waiver or authorization from a federal agency, and authorizes a delay of implementation until such a waiver or authorization is granted.
SECTION 6. Severability clause.
SECTION 7. Effective date: upon passage or September 1, 2025.