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