HB2871 - Relating to the criminal penalties for possession of marihuana; changing the eligibility for community supervision.

  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                      [Text truncated for display. 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