create a legislative bill

By:AAMoody H.B.ANo.A63

A BILL TO BE ENTITLED

AN ACT

relating to the civil and criminal penalties for possession of

certain small amounts of marihuana and an exception to prosecution

for possession of associated drug paraphernalia; creating a

criminal offense.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTIONA1.AASection 481.121(b), Health and Safety Code, is

amended to read as follows:

(b)AAAn offense under Subsection (a) is:

(1)AAa Class B misdemeanor if the amount of marihuana

possessed is two ounces or less but more than one ounce;

(2)AAa Class A misdemeanor if the amount of marihuana

possessed is four ounces or less but more than two ounces;

(3)AAa state jail felony if the amount of marihuana

possessed is five pounds or less but more than four ounces;

(4)AAa felony of the third degree if the amount of

marihuana possessed is 50 pounds or less but more than 5 pounds;

(5)AAa felony of the second degree if the amount of

marihuana possessed is 2,000 pounds or less but more than 50 pounds;

and

(6)AApunishable 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.

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86R3108 JSC-D 1

SECTIONA2.AASubchapter D, Chapter 481, Health and Safety

Code, is amended by adding Sections 481.1211 and 481.1212 to read as

follows:

Sec.A481.1211.AACIVIL PENALTY: POSSESSION OF SMALL AMOUNT OF

MARIHUANA. (a) Notwithstanding Section 481.121 and except as

otherwise provided by Section 481.1212, a person who knowingly or

intentionally possesses a usable quantity of marihuana in an amount

that is one ounce or less does not commit an offense but is liable to

the state for a civil penalty not to exceed $250.

(b)AAThe imposition of a civil penalty under this section is

not a conviction and may not be considered a conviction for any

purpose.

Sec.A481.1212.AAOFFENSE: SUBSEQUENT POSSESSION OF SMALL

AMOUNT OF MARIHUANA. (a) A person commits an offense if the person:

(1)AAknowingly or intentionally possesses a usable

quantity of marihuana in an amount that is one ounce or less; and

(2)AAhas previously been assessed a civil penalty three

times under Section 481.1211.

(b)AAAn offense under this section is a Class C misdemeanor.

SECTIONA3.AASection 481.125, Health and Safety Code, is

amended by adding Subsection (g) to read as follows:

(g)AAIt is a defense to prosecution under this section that

drug paraphernalia was knowingly or intentionally used, possessed,

or delivered solely in furtherance of a violation of Section

481.1211 or an offense under Section 481.1212.

SECTIONA4.AASubchapter B, Chapter 45, Code of Criminal

Procedure, is amended by adding Article 45.062 to read as follows:

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Art.A45.062.AAPROCEEDINGS FOR CERTAIN MARIHUANA POSSESSION

VIOLATIONS AND OFFENSES. (a) A peace officer may not make an

arrest solely because of a violation of Section 481.1211, Health

and Safety Code, regardless of whether the person may be subject to

prosecution under Section 481.1212 of that code. A peace officer

may issue to a person a citation that contains written notice of the

time and place the person must appear before a justice court, the

name and address of the person charged, and the violation charged.

The citation must notify the person that the person may be subject

to prosecution for a Class C misdemeanor under Section 481.1212,

Health and Safety Code, if the person has previously been assessed a

civil penalty three times under Section 481.1211, Health and Safety

Code.

(b)AAThe district or county attorney of the county in which

the conduct described by Section 481.1211, Health and Safety Code,

is alleged to have occurred may:

(1)AAbring an action in the justice court of the county

to collect the civil penalty of a person who receives a citation

under this section; or

(2)AAcharge the person with an offense under Section

481.1212, Health and Safety Code, if the person has previously been

assessed a civil penalty three times under Section 481.1211 of that

code.

(c)AAExcept as otherwise provided by this article, a civil

action under this article for a violation of Section 481.1211,

Health and Safety Code, shall be conducted in the manner provided by

this chapter as if an offense were charged.

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(d)AAThe court may not:

(1)AAissue an arrest warrant under Article 45.014 for a

violation of Section 481.1211, Health and Safety Code, or an

offense under Section 481.1212 of that code; or

(2)AArequire the person who violates Section 481.1211,

Health and Safety Code, or commits an offense under Section

481.1212 of that code, to give bail under Article 45.016.

(e)AAA citation issued under this article is considered to be

a sufficient complaint for purposes of Articles 45.018 and 45.019

if the citation is filed with the court by a district or county

attorney.

(f)AAA person liable for a civil penalty under Section

481.1211, Health and Safety Code, may not appeal under Article

45.042.

(g)AABefore imposing a civil penalty under Section 481.1211,

Health and Safety Code, the court shall determine whether the

person subject to the penalty is indigent. If the court determines

the person is indigent, the court shall waive the penalty and may

order the person to complete not more than 10 hours of community

service.

(h)AASubsections (n), (p), and (q) apply to a person for whom

a court waives a penalty under Subsection (g).

(i)AAThe court may waive or reduce the civil penalty for a

person other than a person described by Subsection (g) if:

(1)AAthe person subject to a civil penalty under

Section 481.1211, Health and Safety Code, attends a program that

provides education in substance abuse and is approved by the

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Department of State Health Services, the Texas Department of

Licensing and Regulation, or the Texas Department of Public Safety;

or

(2)AAthe person performs not more than 10 hours of

community service, as ordered by the court.

(j)AAIf during a proceeding for a violation of Section

481.1211, Health and Safety Code, the court finds that the person

has previously been assessed a civil penalty under that section one

or two times, the court shall, in addition to assessing a civil

penalty, order the person to attend a program that provides

education in substance abuse and is approved by the Department of

State Health Services, the Texas Department of Licensing and

Regulation, or the Texas Department of Public Safety.

(k)AAIf during a proceeding for a violation of Section

481.1211, Health and Safety Code, the court finds that the person

has previously been assessed a civil penalty under that section

three times, the court shall suspend the proceedings and notify the

appropriate prosecuting attorney so that the person may be charged

with an offense under Section 481.1212, Health and Safety Code.

(l)AAOn a plea of guilty or nolo contendere for an offense

under Section 481.1212, Health and Safety Code, by a defendant and

payment of all court costs, the judge shall defer further

proceedings without entering an adjudication of guilt and place the

defendant on probation under the provisions of Article 45.051.

(m)AAThe court may issue a capias for the arrest of a person

who fails to appear or to make payment, as directed by a citation

issued under this section.

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(n)AALaw enforcement may seize any marihuana in possession of

a person subject to a civil penalty under Section 481.1211, Health

and Safety Code, or subject to prosecution under Section 481.1212

of that code. If marihuana is seized under this article in

connection with a violation of Section 481.1211, Health and Safety

Code, law enforcement shall preserve the marihuana as if the

marihuana were evidence of an offense under Section 481.1212,

Health and Safety Code, pending the final resolution of a civil

proceeding under this article. After final resolution of a civil

proceeding under this article, any marihuana seized is subject to

forfeiture and shall be disposed of in accordance with Section

481.159, Health and Safety Code.

(o)AAThis article does not affect the authority of a peace

officer to conduct a search or seize marihuana or other property as

contraband under Chapter 18 or 59 or other law.

(p)AAThe identity of a person cited for a violation of

Section 481.1211, Health and Safety Code, is confidential

information and may not be disclosed to the public unless the person

is charged with an offense under Section 481.1212, Health and

Safety Code, in connection with that citation.

(q)AAThe identity of a person found liable for a civil

penalty under Section 481.1211, Health and Safety Code, is

confidential information and may not be disclosed to the public.

SECTIONA5.AASection 51.03(a), Family Code, is amended to

read as follows:

(a)AADelinquent conduct is:

(1)AAconduct, other than a traffic offense, that

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violates a penal law of this state or of the United States

punishable by imprisonment or by confinement in jail;

(2)AAconduct that violates a lawful order of a court

under circumstances that would constitute contempt of that court

in:

(A)AAa justice or municipal court;

(B)AAa county court for conduct punishable only by

a fine; or

(C)AAa truancy court;

(3)AAconduct that violates Section 49.04, 49.05, 49.06,

49.07, or 49.08, Penal Code; [or]

(4)AAconduct that violates Section 106.041, Alcoholic

Beverage Code, relating to driving under the influence of alcohol

by a minor (third or subsequent offense); or

(5)AAconduct for which a person is subject to a civil

penalty under Section 481.1211, Health and Safety Code, or that

violates Section 481.1212 of that code.

SECTIONA6.AASection 118.124, Local Government Code, is

amended to read as follows:

Sec.A118.124.AAPROHIBITED FEES. A justice of the peace is

not entitled to a fee for:

(1)AAthe examination of a paper or record in the

justice’s office;

(2)AAfiling any process or document the justice issues

that is returned to court;

(3)AAa motion or judgment on a motion for security for

costs;

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(4)AAtaking or approving a bond for costs; [or]

(5)AAthe first copy of a document in a criminal case

issued to:

(A)AAa criminal defendant in the case;

(B)AAan attorney representing a criminal

defendant in the case; or

(C)AAa prosecuting attorney; or

(6)AAthe filing of a civil action by the state under

Section 481.1211, Health and Safety Code.

SECTIONA7.AAThe changes in law made by this Act apply only to

a violation of law that occurs on or after the effective date of

this Act. A violation that occurs before the effective date of this

Act is governed by the law in effect on the date the violation

occurred, and the former law is continued in effect for that

purpose. For purposes of this section, a violation of law occurred

before the effective date of this Act if any element of the

violation occurred before that date.

SECTIONA8.AAThis Act takes effect September 1, 2019.

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