Bill Text: TX HB1212 | 2015-2016 | 84th Legislature | Enrolled

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Bill Title: Relating to the prosecution and punishment of certain offenses under the Texas Controlled Substances Act and the regulation and scheduling of certain substances.

Spectrum: Moderate Partisan Bill (Republican 7-2)

Status: (Passed) 2015-06-17 - Effective on 9/1/15 [HB1212 Detail]

Download: Texas-2015-HB1212-Enrolled.html

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H.B. No. 1212

AN ACT
relating to the prosecution and punishment of certain offenses
under the Texas Controlled Substances Act and the regulation and
scheduling of certain substances.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. This Act shall be known as the Montana Brown and
Jesse High Act.
SECTION 2. Chapter 431, Health and Safety Code, is amended
by adding Subchapter G-1 to read as follows:
SUBCHAPTER G-1. ABUSABLE SYNTHETIC SUBSTANCES
Sec. 431.171. DESIGNATION OF CONSUMER COMMODITY AS ABUSABLE
SYNTHETIC SUBSTANCE. (a) The commissioner may designate a consumer
commodity as an abusable synthetic substance if the commissioner
determines that the consumer commodity is likely an abusable
synthetic substance and the importation, manufacture,
distribution, or retail sale of the commodity poses a threat to
public health.
(b) In determining whether a consumer commodity is an
abusable synthetic substance, the commissioner may consider:
(1) whether the commodity is sold at a price higher
than similar commodities are ordinarily sold;
(2) any evidence of clandestine importation,
manufacture, distribution, or diversion from legitimate channels;
(3) any evidence suggesting the product is intended
for human consumption, regardless of any consumption prohibitions
or warnings on the packaging of the commodity; or
(4) whether any of the following factors suggest the
commodity is an abusable synthetic substance intended for illicit
drug use:
(A) the appearance of the packaging of the
commodity;
(B) oral or written statements or
representations of a person who sells, manufactures, distributes,
or imports the commodity;
(C) the methods by which the commodity is
distributed; and
(D) the manner in which the commodity is sold to
the public.
Sec. 431.172. APPLICABILITY OF CHAPTER TO ABUSABLE
SYNTHETIC SUBSTANCE. A commodity classified as an abusable
synthetic substance by the commissioner under Section 431.171 is
subject to:
(1) the provisions of this chapter that apply to food
and cosmetics, including provisions relating to adulteration,
packaging, misbranding, and inspection; and
(2) all enforcement actions under Subchapter C.
SECTION 3. Sections 481.002(5) and (6), Health and Safety
Code, are amended to read as follows:
(5) "Controlled substance" means a substance,
including a drug, an adulterant, and a dilutant, listed in
Schedules I through V or Penalty Group [Groups] 1, 1-A, [or] 2, 2-A,
3, or [through] 4. The term includes the aggregate weight of any
mixture, solution, or other substance containing a controlled
substance.
(6) "Controlled substance analogue" means:
(A) a substance with a chemical structure
substantially similar to the chemical structure of a controlled
substance in Schedule I or II or Penalty Group 1, 1-A, [or] 2, or
2-A; or
(B) a substance specifically designed to produce
an effect substantially similar to, or greater than, the effect of a
controlled substance in Schedule I or II or Penalty Group 1, 1-A,
[or] 2, or 2-A.
SECTION 4. Subchapter B, Chapter 481, Health and Safety
Code, is amended by adding Section 481.0355 to read as follows:
Sec. 481.0355. EMERGENCY SCHEDULING. (a) Except as
otherwise provided by Subsection (b) and subject to Subsection (c),
the commissioner may emergency schedule a substance as a controlled
substance if the commissioner determines the action is necessary to
avoid an imminent hazard to the public safety.
(b) The commissioner may not emergency schedule a substance
as a controlled substance under this section if:
(1) the substance is already scheduled;
(2) an exemption or approval is in effect for the
substance under Section 505, Federal Food, Drug, and Cosmetic Act
(21 U.S.C. Section 355); or
(3) the substance is an over-the-counter drug that
qualifies for recognition as safe and effective under conditions
established by federal regulations of the United States Food and
Drug Administration governing over-the-counter drugs.
(c) Before emergency scheduling a substance as a controlled
substance under this section, the commissioner shall consult with
the Department of Public Safety regarding the chemical structure of
compounds contained in that substance, and may emergency schedule
the substance only in accordance with any recommendations provided
by the department.
(d) In determining whether a substance poses an imminent
hazard to the public safety, the commissioner shall consider, in
addition to the factors provided by Section 481.034(d):
(1) the scope, duration, and symptoms of abuse;
(2) the degree of detriment that abuse of the
substance may cause;
(3) whether the substance has been temporarily
scheduled under federal law; and
(4) whether the substance has been temporarily or
permanently scheduled under the law of another state.
(e) If the commissioner emergency schedules a substance as a
controlled substance under this section, an emergency exists for
purposes of Section 481.036(c) and the action takes effect on the
date the schedule is published in the Texas Register.
(f) An emergency scheduling under this section expires on
September 1 of each odd-numbered year for any scheduling that
occurs before January 1 of that year.
(g) The commissioner shall post notice about each emergency
scheduling under this section on the Internet website of the
Department of State Health Services.
SECTION 5. Section 481.106, Health and Safety Code, is
amended to read as follows:
Sec. 481.106. CLASSIFICATION OF CONTROLLED SUBSTANCE
ANALOGUE. For the purposes of the prosecution of an offense under
this subchapter involving the manufacture, delivery, or possession
of a controlled substance, Penalty Groups 1, 1-A, [and] 2, and 2-A
include a controlled substance analogue that:
(1) has a chemical structure substantially similar to
the chemical structure of a controlled substance listed in the
applicable penalty group; or
(2) is specifically designed to produce an effect
substantially similar to, or greater than, a controlled substance
listed in the applicable penalty group.
SECTION 6. Section 481.123(a), Health and Safety Code, is
amended to read as follows:
(a) It is an affirmative defense to the prosecution of an
offense under this subchapter involving the manufacture, delivery,
or possession of a controlled substance analogue that the analogue:
(1) [was not in any part intended for human
consumption;
[(2)] was a substance for which there is an approved
new drug application under Section 505 of the Federal Food, Drug,
and Cosmetic Act (21 U.S.C. Section 355); or
(2) [(3)] was a substance for which an exemption for
investigational use has been granted under Section 505 of the
Federal Food, Drug, and Cosmetic Act (21 U.S.C. Section 355), if the
actor's conduct with respect to the substance is in accord with the
exemption.
SECTION 7. 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 occurred
before that date.
SECTION 8. This Act takes effect September 1, 2015.
______________________________ ______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 1212 was passed by the House on April
30, 2015, by the following vote: Yeas 135, Nays 4, 2 present, not
voting; and that the House concurred in Senate amendments to H.B.
No. 1212 on May 26, 2015, by the following vote: Yeas 143, Nays 0,
2 present, not voting.
______________________________
Chief Clerk of the House
I certify that H.B. No. 1212 was passed by the Senate, with
amendments, on May 21, 2015, by the following vote: Yeas 30, Nays
1.
______________________________
Secretary of the Senate
APPROVED: __________________
Date
__________________
Governor