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