Perry Bill Makes The Health Commissioner’s Word Beat Other Law

The text as introduced · 1,451 words

89R7628 CJD-F

By: Perry
S.B. No. 1869

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 statute.

(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), 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) 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 , 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 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, or otherwise

changing a substance with respect to the federal schedules, the

commissioner similarly shall designate, reschedule, [ or ] delete ,

or change the scheduling of 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

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.

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.