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HOUSE HB 63 (2nd reading) RESEARCH Moody, et al. ORGANIZATION bill analysis 4/25/2019 (CSHB 63 by Collier)

SUBJECT: Reducing penalty for possessing up to one ounce of marijuana

COMMITTEE: Criminal Jurisprudence — committee substitute recommended

VOTE: 5 ayes — Collier, J. González, Hunter, Moody, Pacheco

2 nays — K. Bell, Murr

2 absent — Zedler, P. King

WITNESSES: For — Nick Hudson, American Civil Liberties Union of Texas; Chas

Moore, Austin Justice Coalition; Katharine Harris, Rice University Baker

Institute for Public Policy; Jose Ramon, Cannabis Open Carry Walks;

Karen Reeves, CenTex Community Outreach; Mark Gonzalez, Nueces

County District Attorney; Jeff LeBlanc, Republican Liberty Caucus of

Texas; John Baucum, Republicans Against Marijuana Prohibition; Bryon

Adinoff and Heather Fazio, Texans for Responsible Marijuana Policy;

Jaclyn Finkel, Texas NORML; Christopher Valenzuela, West Texas

Movement for Marijuana Law Reform; and 17 individuals; (Registered,

but did not testify: Chase Bearden, Coalition of Texans with Disabilities;

Mandi Hughes, COCW; M. Paige Williams, Dallas County District

Attorney’s Office; Kory Watkins, Free The Weed In Texas; Jose Carlos

Gonzalez, Gonzalez and Associates; Cate Graziani, Grassroots Leadership

and Texas Advocates for Justice; Kathleen Mitchell, Just Liberty; Aimee

Mobley Turney, League of Women Voters of Texas; Amos Postell, Lone

Star Gun Rights; Connor Oakley, The Medical Cannabis Association of

Texas; James Dickey, Republican Party of Texas; Chris Howe,

Republican Party of Texas; Michael Cargill, Texans for Accountable

Government; Lance Lowry, Texas Association of Taxpayers; Douglas

Smith, Texas Criminal Justice Coalition; Emily Gerrick, Texas Fair

Defense Project; Lonzo Kerr, Texas NAACP; Nicholas Entzi, Texas

Pioneers; Snapper Carr, TexCann; Liza Deanda-Garcia, The Hemp and

Cannabis Institute Houston; Jesse Williams, TX NORML; and 63

individuals)

Against — Ronnie Morris, City of Grand Prairie; Jimmy Perdue, City of

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North Richland Hills (Registered, but did not testify: John Fleming,

Nacogdoches County Attorney; Stephanie Stephens, Nacogdoches County

Attorney; AJ Louderback, Sheriffs' Association of Texas; Wendell

Mitchell and Gene Ellis, Texas Police Chiefs Association; Mary Castle,

Texas Values; Nicole Hudgens, Texas Values Action; Noel Johnson,

Texas Municipal Police Association; Micah Harmon)

On — Terence Holway, Plano police Department; (Registered, but did not

testify: Shannon Edmonds, Texas District and County Attorneys

Association)

BACKGROUND: Health and Safety Code sec. 481.121 makes possession of marijuana a

crime. It is a class B misdemeanor (up to 180 days in jail and/or a

maximum fine of $2,000) to knowingly or intentionally possess up to two

ounces of marijuana and class A misdemeanor (up to one year in jail

and/or a maximum fine of $4,000) to possess more than two ounces and

up to four ounces. Penalties continue to increase as the amount of

marijuana increases.

DIGEST: CSHB 63 would make those who possessed one ounce or less of

marijuana liable for a civil penalty of up to $250 and would eliminate the

criminal offense in these cases. The imposition of the civil penalty would

not be a conviction and could not be considered one for any purpose. The

bill would make it a class C misdemeanor (maximum fine of $500) to

possess one ounce or less of marijuana if the person had previously been

held civilly liable two previous times for possession.

It would be a class B misdemeanor to possess more than one ounce and up

to two ounces of marijuana. CSHB 63 would make it a defense to

prosecution for the crime of possession or delivery of drug paraphernalia

if the paraphernalia was used, possessed, or delivered solely for a

violation of possessing an ounce or less of marijuana.

Citations. Peace officers would be prohibited from making an arrest

solely because of a violation for possessing an ounce or less of marijuana.

Peace officers could issue citations that required appearance in a justice

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court, and the citation would have to notify persons that they could be

subject to a class C misdemeanor if they had previously been assessed two

civil penalties.

Court procedures. Prosecutors could bring an action in court to collect

the civil penalty or could charge a qualifying person with the class C

misdemeanor. A civil action would have to be conducted in the same

manner as an offense.

Courts could not issue arrest warrants for the violations and could not

require persons to post bail for the offenses. Individuals could not appeal

the civil penalty in the justice court. Courts could issue a capias for the

arrest of individuals who failed to appear or pay the civil penalty.

Before imposing a civil penalty, courts would have to determine whether

the person was indigent, and if so, waive the penalty. Courts could order

the person to complete up to 10 hours of community service. Courts could

waive or reduce the civil penalty for an individual who was not indigent if

the person attended an approved substance abuse education course or

performed up to 10 hours of court-ordered community service.

If a person previously had been assessed a civil penalty, courts would be

required to order the person to attend an approved substance abuse

education course, in addition to the civil penalty. If a court found that a

person previously had been assessed two civil penalties, it would have to

suspend proceedings and notify the prosecutor.

On a plea of guilty or no contest for a class C misdemeanor under the bill

and payment of all court costs, judges would have to place the defendant

on deferred adjudication probation.

Evidence. Law enforcement officials could seize marijuana possessed by

individuals subject to a civil penalty or a class C misdemeanor. If it were

seized in relation to a civil offense, it would have to be preserved as if it

were evidence for the class C misdemeanor.

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Records. The identity of individuals cited and found liable for a civil

violation would be confidential and could not be released to the public,

except that a person's identity would not be confidential if the person were

charged with a class C misdemeanor in connection with the penalty.

Courts could maintain a database or electronic record of civil penalties

and could share that information with other courts to determine if a person

had previous been assessed a civil penalty. Information in the database or

record could not be disclosed to the public.

Other provisions. Justices of the peace would not be entitled to fees for

the filing of a civil action under the bill.

CSHB 63 would not affect the authority of peace officers to conduct a

search or seize marijuana or other property as contraband under other

laws.

Possession of less than an ounce of marijuana that would be subject to a

civil penalty or class C misdemeanor under the bill would be added to the

definition of delinquent conduct in the Juvenile Justice Code.

The bill would take effect September 1, 2019, and would apply to

violations that occur on or after that date.

SUPPORTERS

SAY:

CSHB 63 would revise penalties associated with possession of small

amounts of marijuana to better reflect the seriousness of the offense and to

allow state and local governments to use criminal justice resources more

efficiently and effectively. CSHB 63 would not legalize marijuana in

Texas, authorize medical marijuana, or promote marijuana. The bill would

provide an enforcement alternative so that those possessing marijuana

would be held accountable through civil fines and potentially a class C

misdemeanor.

Current laws establishing a class B misdemeanor for possessing up to two

ounces of marijuana overcriminalize a non-violent behavior that does not

pose a serious health or public safety risk. This level of criminalization

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can result in negative consequences that are out of proportion to the

offense. Drug charges or convictions can be barriers to employment,

housing, education, military service and more, and can lead to the

revocation of driver's licenses. CSHB 63 would keep individuals

employable and in school by keeping them out of jail and eliminating

criminal records for low-level first- and second-time possession.

CSHB 63 would be fiscally responsible because it is costly for local

governments to enforce current laws on possession. These costs include

time and resources spent arresting, prosecuting, and locking up those

charged and in some cases providing lawyers at taxpayer expense. CSHB

63 could reduce these costs by allowing police officers to issue tickets and

have individuals show up later at court, freeing resources to address more

serious incidents.

A statewide law is needed so there would be consistent treatment for low-

level possession instead of a patchwork of local policies. This could help

address geographic and racial disparities in the enforcement of drug laws.

CSHB 63 would not remove the discretion of local governments to adopt

other programs such as diversion or treatment and would not harm other

law enforcement efforts.

CSHB 63 would not reduce public safety or encourage drug use, nor

would it contribute to a "gateway" effect of leading individuals to harder

drugs. It still would be illegal to traffic drugs, drive while under the

influence, and to be publicly intoxicated. Current punishments would

remain for possession of larger amounts of marijuana and selling

marijuana. Drug or other searches would be completely unaffected by the

bill.

Texans support reduced penalties for possessing small amounts of

marijuana. Sixty-nine percent of those surveyed in a 2018 University of

Texas/Texas Tribune poll supported reducing punishment for possession

of a small amount of marijuana to a citation and a fine.

CSHB 63 would not place police officers in a difficult position when

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determining whether something was a civil or criminal offense. The

average arrest is for a very small amount of marijuana, and it would be

clear how to proceed in these cases. If officers were unsure how to

proceed, they could weigh the marijuana. The bill allows courts to share

electronic records with other courts and prosecutors so that subsequent

offenses would be identified.

OPPONENTS

SAY:

Marijuana is a potentially harmful drug and possessing even small

amounts should continue to be treated as such under current law.

Current law making possession of up to two ounces a class B

misdemeanor provides a range of punishments and options for handling

low-level possession cases, including probation, pre-trial diversion, and

deferred adjudication. Some jurisdictions use current law to issue a

citation and a summons to appear in court. In some cases, jail sentences

could be appropriate and motivate addicts to enter treatment or to stop

abusing drugs.

Concerns about the costs of enforcing laws on marijuana possession

should not override the need to handle these offenses appropriately.

Communities concerned about the cost to enforce current law could

explore options such as cite-and-summons law.

Marijuana continues to be a public safety concern, and lowering penalties

could result in increased marijuana use that could raise serious public

safety issues. Related crimes, such as impaired driving, robbery, burglary,

and drug dealing could increase.

CSHB 63 would send the wrong message about drug use and could be a

pathway for eventual legalization. Expanded drug use could exacerbate

public health problems, such as drug abuse and addiction. These problems

can be especially harmful to youth who are developing cognitively and for

whom marijuana could serve as a gateway to other drug use.

OTHER

OPPONENTS

The process that would be established by CSHB 63 could be unwieldy and

unworkable. It could be difficult for police officers on the street to know

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SAY: whether to proceed civilly or criminally, and making a wrong choice

could jeopardize a case. It could be difficult to know whether someone

had a previous civil fine because courts would create their own electronic

list.

Rather than institute a civil fine for low-level possession of one ounce or

less of marijuana, the bill should make these offenses class C

misdemeanors. This would adjust the penalty to be more appropriate and

avoid imposing jail time but keep incidents in the criminal justice arena.

NOTES: According to the Legislative Budget Board, the bill would result in a

positive impact of $5.3 million on general revenue related funds through

fiscal 2020-21.