HB2681 - Relating to the penalty for certain offenders for possession of a small amount of certain controlled substances.

  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 defens [Text truncated for display. 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