By: Perry S.B. No. 1869     A BILL TO BE ENTITLED   AN ACT   relating to the procedures for modifying the schedules of   controlled substances.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  Section 481.034, Health and Safety Code, is   amended by amending Subsections (a), (b), (d), and (g) and adding   Subsections (a-1) and (c-1) to read as follows:          (a)  The commissioner shall at least annually establish the   schedules of controlled substances. These [annual] schedules shall   include the complete list of all controlled substances from the   previous schedules and modifications in the federal schedules of   controlled substances under [as required by] Subsection (g).   Except as provided by Subsection (g), any [Any] further additions   to and deletions from these schedules, any rescheduling of   substances, and any other modifications made by the commissioner to   these schedules of controlled substances shall be made:                (1)  in accordance with Section 481.035;                (2)  in a manner consistent with this subchapter; and                (3)  with approval of the executive commissioner.          (a-1)  A decision or modification to the schedules made by   the commissioner under Subsection (a) is final and binding, unless   altered by the legislature as described by Subsection (c).          (b)  Except for alterations in schedules under [required by]   Subsection (g), the commissioner may not make an alteration in a   schedule unless the commissioner holds a public hearing on the   matter in Austin and obtains approval from the executive   commissioner.          (c-1)  For purposes of Subsection (c):                (1)  an action by the legislature in adding a   controlled substance to, or removing a controlled substance from, a   penalty group does not change or require the commissioner to change   the schedule of the controlled substance; and                (2)  the legislature is considered to have added,   deleted, or rescheduled a substance with respect to a schedule   listed in this subchapter only if the legislature passes a bill that   becomes law directly adding, deleting, or rescheduling the   substance with respect to a specific schedule listed in this   subchapter.          (d)  In making a determination regarding a substance, other   than a determination under Subsection (g), the commissioner shall   consider and make findings with respect to each of the following   factors:                (1)  the actual or relative potential for its abuse;                (2)  the scientific evidence of its pharmacological   effect, if known;                (3)  the state of current scientific knowledge   regarding the substance;                (4)  the history and current pattern of its abuse;                (5)  the scope, duration, and significance of its   abuse;                (6)  the risk to the public health;                (7)  the potential of the substance to produce   psychological or physiological dependence liability; and                (8)  whether the substance is a controlled substance   analogue, chemical precursor, or an immediate precursor of a   substance controlled under this chapter.          (g)  Except as otherwise provided by this subsection, if a   substance is designated, rescheduled, or deleted as a controlled   substance under federal law and notice of that fact is given to the   commissioner, the commissioner similarly shall control the   substance under this chapter unless the commissioner objects.   After the expiration of a 90-day [30-day] period beginning on the   day after the date of publication in the Federal Register of a final   order designating a substance as a controlled substance or   rescheduling or deleting a substance, the commissioner similarly   shall designate, reschedule, or delete the substance, unless the   commissioner objects during the period. If the commissioner   objects, the commissioner shall publish the reasons for the   objection, the commissioner's [and give all interested parties an   opportunity to be heard. At the conclusion of the hearing, the   commissioner shall publish a] decision, and any resulting   modifications to the schedules which are [is] final and binding   unless altered by the legislature as described by Subsection (c)   [statute]. On publication of an objection by the commissioner,   control as to that particular substance under this chapter is   stayed until the commissioner publishes the commissioner's   decision. If the commissioner objects under this subsection, the   commissioner may control the substance under this chapter similarly   to the manner in which the substance is controlled under federal law   or control the substance under this chapter in a manner determined   appropriate by the commissioner.          SECTION 2.  Subchapter B, Chapter 481, Health and Safety   Code, is amended by adding Sections 481.038 and 481.039 to read as   follows:          Sec. 481.038.  INTERPRETATION OF SUBCHAPTER. (a) The   commissioner shall manage the schedules of controlled substances   under this subchapter and may:                (1)  adopt, for the administration of schedules,   written rules, policies, or guidelines;                (2)  interpret and construe this subchapter;                (3)  correct a defect, supply an omission, and   reconcile an inconsistency that appears in this subchapter in a   manner and to the extent that the commissioner considers expedient   to administer this subchapter for the protection of public health   and safety;                (4)  determine all questions, whether legal or factual,   relating to this subchapter to promote the uniform administration   of this subchapter for the benefit of public health and safety; and                (5)  establish and maintain records necessary or   appropriate for the proper administration of this subchapter.          (b)  The determination of a fact or finding by the   commissioner, a final order or schedule modification issued by the   commissioner, an action taken by the commissioner, or the   commissioner's interpretation of this subchapter is final and   binding.          (c)  Except as provided by Section 481.034(c), if the   determination of a fact or finding by the commissioner, a final   order or schedule modification issued by the commissioner, an   action taken by the commissioner, or the commissioner's   interpretation of this subchapter conflicts with other law, the   commissioner's determination, issuance, action, or interpretation   prevails.          Sec. 481.039.  SCHEDULING AND RELATED ACTIONS BY   COMMISSIONER NOT SUBJECT TO JUDICIAL REVIEW. (a) The legislature   grants the commissioner broad authority to administer this   subchapter in an effort to promote public health and safety. A   court may not substitute the court's judgment for the judgment of   the commissioner regarding this subchapter. A final order or   schedule modification under this subchapter is final and binding.   As authorized by Section 8, Article V, Texas Constitution, all   actions, proceedings, and remedies related to this subchapter are   granted solely to the commissioner and may be adjudicated at the   commissioner's discretion.          (b)  An action taken by the commissioner under this   subchapter does not waive sovereign immunity.          (c)  A court shall immediately dismiss a claim barred by this   subchapter.          (d)  On dismissal of a claim under Subsection (c), the state   is entitled to recover court costs and attorney's fees from the   claimant.          (e)  If a claim is not immediately dismissed under Subsection   (c) and the state prevails, the state is entitled to recover court   costs and attorney's fees from the claimant.           (f)  An appeal of an action related to an act or omission by   the commissioner under this subchapter is governed by the   procedures for accelerated appeals in civil cases under the Texas   Rules of Appellate Procedure. The appellate court shall render the   court's final order or judgment with the least possible delay.          SECTION 3.  Subchapter I, Chapter 2001, Government Code, is   amended by adding Section 2001.228 to read as follows:          Sec. 2001.228.  SCHEDULES OF CONTROLLED SUBSTANCES. (a)   This chapter does not apply to an action taken by the Department of   State Health Services, the Health and Human Services Commission, or   the Department of Public Safety under Subchapter B, Chapter 481,   Health and Safety Code, including the establishment or modification   of the schedules of controlled substances under Section 481.034,   Health and Safety Code, or the emergency scheduling of controlled   substances under Section 481.0355, Health and Safety Code.          (b)  A final order or schedule modification under Subchapter   B, Chapter 481, Health and Safety Code, is not a rule for purposes   of this chapter.          SECTION 4.  Section 481.034(e), Health and Safety Code, is   repealed.          SECTION 5.  If before implementing any provision of this Act   a state agency determines that a waiver or authorization from a   federal agency is necessary for implementation of that provision,   the agency affected by the provision shall request the waiver or   authorization and may delay implementing that provision until the   waiver or authorization is granted.          SECTION 6.  It is the intent of the legislature that every   provision, section, subsection, sentence, clause, phrase, or word   in this Act, and every application of the provisions in this Act to   every person, group of persons, or circumstances, are severable   from each other. If any application of any provision in this Act to   any person, group of persons, or circumstances is found by a court   to be invalid for any reason, the remaining applications of that   provision to all other persons and circumstances shall be severed   and may not be affected.          SECTION 7.  This Act takes effect immediately if it receives   a vote of two-thirds of all the members elected to each house, as   provided by Section 39, Article III, Texas Constitution.  If this   Act does not receive the vote necessary for immediate effect, this   Act takes effect September 1, 2025.