bill lowering marihuana possession penalties

The text as introduced · 3,173 words

89R8586 CJD-D

By: Garcia of Bexar
H.B. No. 2871

A BILL TO BE ENTITLED

AN ACT

relating to the criminal penalties for possession of marihuana;

changing the eligibility for community supervision.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Sections 481.121(b) and (c), Health and Safety

Code, are amended to read as follows:

(b) An offense under Subsection (a) is:

(1) a Class C [ 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 ];

(1-a) a Class B misdemeanor if the amount of marihuana

possessed is 10 ounces or less but more than 4 ounces;

(2) a Class A misdemeanor if the amount of marihuana

possessed is 1 pound or less but more than 10 ounces;

(3) a state jail felony if the amount of marihuana

possessed is five pounds or less but more than one pound [ 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.

(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 2. Article 14.06(d), Code of Criminal Procedure, is

amended to read as follows:

(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;

(5-a) Section 37.10, Penal Code, if the offense is for

tampering with a temporary tag issued under Chapter 502 or 503,

Transportation Code;

(6) Section 38.114, Penal Code, if the offense is

punishable as a Class B misdemeanor; or

(7) Section 521.457, Transportation Code.

SECTION 3. 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 4. 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);

(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 5. 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 6. 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 7. Section 481.116(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), 481.1161(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), 481.1151(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 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 481.125(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 13. 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), 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 14. 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 15. 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 16. (a) Except as otherwise provided by Subsection

(b) of 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 subsection, an offense was committed before the

effective date of this Act if any element of the offense was

committed before that date.

(b) Sections 481.121 and 481.134, Health and Safety Code, as

amended by this Act, apply to an offense committed under Section

481.121 or an offense committed under Section 481.121 and

punishable under Section 481.134 before, on, or after September 1,

2025, except that a final conviction for an offense that exists on

September 1, 2025, is unaffected by this Act.

SECTION 17. This Act takes effect September 1, 2025.