By: Perry S.B. No. 1869
(In the Senate - Filed March 4, 2025; March 17, 2025, read
first time and referred to Committee on Health & Human Services;
April 7, 2025, reported adversely, with favorable Committee
Substitute by the following vote: Yeas 7, Nays 2; April 7, 2025,
sent to printer.)
Click here to see the committee vote
COMMITTEE SUBSTITUTE FOR S.B. No. 1869 By: Hancock
A BILL TO BE ENTITLED
AN ACT
relating to the procedures for modifying the schedules of
controlled substances.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 481.034, Health and Safety Code, is
amended by amending Subsections (a), (b), (d), and (g) and adding
Subsections (a-1) and (c-1) to read as follows:
(a) The commissioner shall at least annually establish the
schedules of controlled substances. These [annual] schedules shall
include the complete list of all controlled substances from the
previous schedules and modifications in the federal schedules of
controlled substances under [as required by] Subsection (g).
Except as provided by Subsection (g), any [Any] further additions
to and deletions from these schedules, any rescheduling of
substances, and any other modifications made by the commissioner to
these schedules of controlled substances shall be made:
(1) in accordance with Section 481.035;
(2) in a manner consistent with this subchapter; and
(3) with approval of the executive commissioner.
(a-1) A decision or modification to the schedules made by
the commissioner under Subsection (a) is final and binding, unless
altered by the legislature as described by Subsection (c).
(b) Except for alterations in schedules under [required by]
Subsection (g), the commissioner may not make an alteration in a
schedule unless the commissioner holds a public hearing on the
matter in Austin and obtains approval from the executive
commissioner.
(c-1) For purposes of Subsection (c):
(1) 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; and
(2) the legislature is considered to have added,
deleted, or rescheduled a substance with respect to a schedule
listed in this subchapter only if the legislature passes a bill that
becomes law directly adding, deleting, or rescheduling the
substance with respect to a specific schedule listed in this
subchapter.
(d) In making a determination regarding a substance, other
than a determination under Subsection (g), the commissioner shall
consider and make findings with respect to each of the following
factors:
(1) the actual or relative potential for its abuse;
(2) the scientific evidence of its pharmacological
effect, if known;
(3) the state of current scientific knowledge
regarding the substance;
(4) the history and current pattern of its abuse;
(5) the scope, duration, and significance of its
abuse;
(6) the risk to the public health;
(7) the potential of the substance to produce
psychological or physiological dependence liability; and
(8) whether the substance is a controlled substance
analogue, chemical precursor, or an immediate precursor of a
substance controlled under this chapter.
(g) Except as otherwise provided by this subsection, if a
substance is designated, rescheduled, or deleted as a controlled
substance under federal law and notice of that fact is given to the
commissioner, the commissioner similarly shall control the
substance under this chapter unless the commissioner objects.
After the expiration of a 90-day [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 or
rescheduling or deleting a substance, the commissioner similarly
shall designate, reschedule, or delete the substance, unless the
commissioner objects during the period. If the commissioner
objects, the commissioner shall publish the reasons for the
objection, the commissioner's [and give all interested parties an
opportunity to be heard. At the conclusion of the hearing, the
commissioner shall publish a] decision, and any resulting
modifications to the schedules which are [is] final and binding
unless altered by the legislature as described by Subsection (c)
[statute]. On publication of an objection by the commissioner,
control as to that particular substance under this chapter is
stayed until the commissioner publishes the commissioner's
decision. If the commissioner objects under this subsection, the
commissioner may 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.
SECTION 2. Subchapter B, Chapter 481, Health and Safety
Code, is amended by adding Sections 481.038 and 481.039 to read as
follows:
Sec. 481.038. INTERPRETATION OF SUBCHAPTER. (a) The
commissioner shall manage the schedules of controlled substances
under this subchapter and may:
(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) 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) 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) The legislature
grants the commissioner broad authority to administer this
subchapter in an effort to promote public health and safety. A
court may not substitute the court's judgment for the judgment of
the commissioner regarding this subchapter. A final order or
schedule modification under this subchapter is final and binding.
As authorized by Section 8, Article V, Texas Constitution, all
actions, proceedings, and remedies related to this subchapter are
granted solely to the commissioner and may be adjudicated at the
commissioner's discretion.
(b) An action taken by the commissioner under this
subchapter does not waive sovereign immunity.
(c) A court shall immediately dismiss a claim barred by this
subchapter.
(d) On dismissal of a claim under Subsection (c), the state
is entitled to recover court costs and attorney's fees from the
claimant.
(e) If a claim is not immediately dismissed under Subsection
(c) and the state prevails, the state is entitled to recover court
costs and attorney's fees from the claimant.
(f) 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. The appellate court shall render the
court's final order or judgment with the least possible delay.
SECTION 3. Subchapter I, Chapter 2001, Government Code, is
amended by adding Section 2001.228 to read as follows:
Sec. 2001.228. SCHEDULES OF CONTROLLED SUBSTANCES. (a)
This chapter 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,
Health and Safety Code, or the emergency scheduling of controlled
substances under Section 481.0355, Health and Safety Code.
(b) 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. Section 481.034(e), Health and Safety Code, is
repealed.
SECTION 5. If before implementing any provision of this Act
a state agency determines that a waiver or authorization from a
federal agency is necessary for implementation of that provision,
the agency affected by the provision shall request the waiver or
authorization and may delay implementing that provision until the
waiver or authorization is granted.
SECTION 6. It is the intent of the legislature that every
provision, section, subsection, sentence, clause, phrase, or word
in this Act, and every application of the provisions in this Act to
every person, group of persons, or circumstances, are severable
from each other. If any application of any provision in this Act to
any person, group of persons, or circumstances is found by a court
to be invalid for any reason, the remaining applications of that
provision to all other persons and circumstances shall be severed
and may not be affected.
SECTION 7. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2025.
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