bill lowering penalty for first-time small drug possession

The text as introduced · 3,268 words

89R11391 RDR-D

By: Dutton
H.B. No. 2681

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) 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.

(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, 2025.