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AN ACT
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relating to offenses involving the fraudulent or unlawful |
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obtaining, delivering, dispensing, distributing, or diverting of a |
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controlled substance; providing penalties. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Subchapter D, Chapter 481, Health and Safety |
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Code, is amended by adding Section 481.1285 to read as follows: |
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Sec. 481.1285. OFFENSE: DIVERSION OF CONTROLLED SUBSTANCE |
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BY REGISTRANTS, DISPENSERS, AND CERTAIN OTHER PERSONS. (a) This |
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section applies only to a registrant, a dispenser, or a person who, |
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pursuant to Section 481.062(a)(1) or (2), is not required to |
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register under this subchapter. |
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(b) A person commits an offense if the person knowingly: |
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(1) converts to the person's own use or benefit a |
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controlled substance to which the person has access by virtue of the |
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person's profession or employment; or |
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(2) diverts to the unlawful use or benefit of another |
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person a controlled substance to which the person has access by |
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virtue of the person's profession or employment. |
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(c) An offense under Subsection (b)(1) is a state jail |
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felony. An offense under Subsection (b)(2) is a felony of the third |
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degree. |
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(d) If conduct that constitutes an offense under this |
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section also constitutes an offense under any other law, the actor |
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may be prosecuted under this section, the other law, or both. |
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SECTION 2. Section 481.129, Health and Safety Code, is |
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amended by adding Subsections (a-1) and (d-1) to read as follows: |
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(a-1) A person commits an offense if the person, with intent |
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to obtain a controlled substance or combination of controlled |
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substances that is not medically necessary for the person or an |
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amount of a controlled substance or substances that is not |
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medically necessary for the person, obtains or attempts to obtain |
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from a practitioner a controlled substance or a prescription for a |
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controlled substance by misrepresentation, fraud, forgery, |
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deception, subterfuge, or concealment of a material fact. For |
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purposes of this subsection, a material fact includes whether the |
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person has an existing prescription for a controlled substance |
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issued for the same period of time by another practitioner. |
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(d-1) An offense under Subsection (a-1) is: |
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(1) a felony of the second degree if any controlled |
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substance that is the subject of the offense is listed in Schedule I |
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or II; |
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(2) a felony of the third degree if any controlled |
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substance that is the subject of the offense is listed in Schedule |
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III or IV; and |
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(3) a Class A misdemeanor if any controlled substance |
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that is the subject of the offense is listed in Schedule V. |
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SECTION 3. Subsection (a), Section 71.02, Penal Code, as |
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amended by Chapters 153 (S.B. 2225), 1130 (H.B. 2086), and 1357 |
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(S.B. 554), Acts of the 81st Legislature, Regular Session, 2009, is |
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reenacted and amended to read as follows: |
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(a) A person commits an offense if, with the intent to |
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establish, maintain, or participate in a combination or in the |
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profits of a combination or as a member of a criminal street gang, |
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the person commits or conspires to commit one or more of the |
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following: |
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(1) murder, capital murder, arson, aggravated |
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robbery, robbery, burglary, theft, aggravated kidnapping, |
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kidnapping, aggravated assault, aggravated sexual assault, sexual |
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assault, forgery, deadly conduct, assault punishable as a Class A |
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misdemeanor, burglary of a motor vehicle, or unauthorized use of a |
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motor vehicle; |
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(2) any gambling offense punishable as a Class A |
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misdemeanor; |
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(3) promotion of prostitution, aggravated promotion |
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of prostitution, or compelling prostitution; |
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(4) unlawful manufacture, transportation, repair, or |
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sale of firearms or prohibited weapons; |
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(5) unlawful manufacture, delivery, dispensation, or |
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distribution of a controlled substance or dangerous drug, or |
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unlawful possession of a controlled substance or dangerous drug |
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through forgery, fraud, misrepresentation, or deception; |
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(5-a) causing the unlawful delivery, dispensation, or |
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distribution of a controlled substance or dangerous drug in |
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violation of Subtitle B, Title 3, Occupations Code; |
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(6) any unlawful wholesale promotion or possession of |
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any obscene material or obscene device with the intent to wholesale |
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promote the same; |
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(7) any offense under Subchapter B, Chapter 43, |
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depicting or involving conduct by or directed toward a child |
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younger than 18 years of age; |
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(8) any felony offense under Chapter 32; |
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(9) any offense under Chapter 36; |
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(10) any offense under Chapter 34 or 35; |
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(11) any offense under Section 37.11(a); |
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(12) any offense under Chapter 20A; |
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(13) any offense under Section 37.10; [or] |
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(14) any offense under Section 38.06, 38.07, 38.09, or |
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38.11; |
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(15) [(14)] any offense under Section 42.10; or |
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(16) [(14)] any offense under Section 46.06(a)(1) or |
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46.14. |
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SECTION 4. Subsections (b) and (c), Section 71.02, Penal |
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Code, as amended by Chapters 761 (H.B. 354) and 900 (S.B. 1067), |
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Acts of the 73rd Legislature, Regular Session, 1993, are reenacted |
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to read as follows: |
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(b) Except as provided in Subsections (c) and (d), an |
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offense under this section is one category higher than the most |
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serious offense listed in Subsection (a) that was committed, and if |
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the most serious offense is a Class A misdemeanor, the offense is a |
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state jail felony, except that if the most serious offense is a |
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felony of the first degree, the offense is a felony of the first |
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degree. |
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(c) Conspiring to commit an offense under this section is of |
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the same degree as the most serious offense listed in Subsection (a) |
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that the person conspired to commit. |
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SECTION 5. Subsection (a), Section 71.05, Penal Code, as |
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amended by Chapters 761 (H.B. 354) and 900 (S.B. 1067), Acts of the |
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73rd Legislature, Regular Session, 1993, is reenacted and amended |
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to read as follows: |
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(a) It is an affirmative defense to prosecution under |
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Section 71.02 that under circumstances manifesting a voluntary and |
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complete renunciation of the actor's [his] criminal objective, the |
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actor withdrew from the combination before commission of an offense |
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listed in [Subsection (a) of] Section 71.02(a) [71.02] and took |
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further affirmative action that prevented the commission of the |
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offense. |
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SECTION 6. Subsection (c), Section 71.05, Penal Code, is |
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amended to read as follows: |
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(c) Evidence that the defendant withdrew from the |
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combination before commission of an offense listed in [Subdivisions
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(1) through (7) or Subdivision (10) of Subsection (a) of] Section |
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71.02(a) [71.02 of this code] and made substantial effort to |
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prevent the commission of an offense listed in [Subdivisions (1)
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through (7) or Subdivision (10) of Subsection (a) of] Section |
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71.02(a) [71.02 of this code] shall be admissible as mitigation at |
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the hearing on punishment if the actor [he] has been found guilty |
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under Section 71.02 [of this code], and in the event of a finding of |
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renunciation under this subsection, the punishment shall be one |
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grade lower than that provided under Section 71.02 [of this code]. |
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SECTION 7. The change in law made by this Act applies only |
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to an offense committed on or after the effective date of this Act. |
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An offense committed before the effective date of this Act is |
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covered by the law in effect when the offense was committed, and the |
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former law is continued in effect for that purpose. For purposes of |
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this section, an offense was committed before the effective date of |
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this Act if any element of the offense occurred before that date. |
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SECTION 8. To the extent of any conflict, this Act prevails |
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over another Act of the 82nd Legislature, Regular Session, 2011, |
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relating to nonsubstantive additions to and corrections in enacted |
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codes. |
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SECTION 9. This Act takes effect September 1, 2011. |
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______________________________ |
______________________________ |
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President of the Senate |
Speaker of the House |
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I hereby certify that S.B. No. 158 passed the Senate on |
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March 30, 2011, by the following vote: Yeas 31, Nays 0; |
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May 26, 2011, Senate refused to concur in House amendments and |
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requested appointment of Conference Committee; May 27, 2011, House |
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granted request of the Senate; May 28, 2011, Senate adopted |
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Conference Committee Report by the following vote: Yeas 31, |
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Nays 0. |
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______________________________ |
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Secretary of the Senate |
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I hereby certify that S.B. No. 158 passed the House, with |
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amendments, on May 25, 2011, by the following vote: Yeas 145, |
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Nays 2, two present not voting; May 27, 2011, House granted request |
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of the Senate for appointment of Conference Committee; |
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May 29, 2011, House adopted Conference Committee Report by the |
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following vote: Yeas 146, Nays 2, one present not voting. |
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______________________________ |
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Chief Clerk of the House |
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Approved: |
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______________________________ |
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Date |
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______________________________ |
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Governor |