87R4690 JSC-D     By: Wu H.B. No. 1735       A BILL TO BE ENTITLED   AN ACT   relating to criminal penalties for possession offenses under the   Texas Controlled Substances Act.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:   ARTICLE 1. POSSESSION OFFENSE PENALTIES          SECTION 1.01.  Section 481.115(c), Health and Safety Code,   is amended to read as follows:          (c)  An offense under Subsection (a) is a felony of the third   degree with a maximum term of imprisonment of five years if the   amount of the controlled substance possessed is, by aggregate   weight, including adulterants or dilutants, one gram or more [but   less than four grams].          SECTION 1.02.  Section 481.1151(b), Health and Safety Code,   is amended to read as follows:          (b)  An offense under this section is:                (1)  a state jail felony if the number of abuse units of   the controlled substance is fewer than 20; and                (2)  a felony of the third degree with a maximum term of   imprisonment of five years if the number of abuse units of the   controlled substance is 20 or more [but fewer than 80;                [(3)  a felony of the second degree if the number of   abuse units of the controlled substance is 80 or more but fewer than   4,000;                [(4)  a felony of the first degree if the number of   abuse units of the controlled substance is 4,000 or more but fewer   than 8,000; and                [(5)  punishable by imprisonment in the Texas   Department of Criminal Justice for life or for a term of not more   than 99 years or less than 15 years and a fine not to exceed   $250,000, if the number of abuse units of the controlled substance   is 8,000 or more].          SECTION 1.03.  Section 481.116(c), Health and Safety Code,   is amended to read as follows:          (c)  An offense under Subsection (a) is a felony of the third   degree with a maximum term of imprisonment of five years if the   amount of the controlled substance possessed is, by aggregate   weight, including adulterants or dilutants, one gram or more [but   less than four grams].          SECTION 1.04.  Section 481.1161(b), Health and Safety Code,   is amended to read as follows:          (b)  An offense under this section is:                (1)  a Class B misdemeanor if the amount of the   controlled substance possessed is, by aggregate weight, including   adulterants or dilutants, two ounces or less;                (2)  a Class A misdemeanor if the amount of the   controlled substance possessed is, by aggregate weight, including   adulterants or dilutants, four ounces or less but more than two   ounces;                (3)  a state jail felony if the amount of the controlled   substance possessed is, by aggregate weight, including adulterants   or dilutants, five pounds or less but more than four ounces; and                (4)  a felony of the third degree with a maximum term of   imprisonment of five years if the amount of the controlled   substance possessed is, by aggregate weight, including adulterants   or dilutants, [50 pounds or less but] more than 5 pounds[;                [(5)  a felony of the second degree if the amount of the   controlled substance possessed is, by aggregate weight, including   adulterants or dilutants, 2,000 pounds or less but more than 50   pounds; and                [(6)  punishable 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 the controlled substance possessed is, by   aggregate weight, including adulterants or dilutants, more than   2,000 pounds].          SECTION 1.05.  Section 481.117(c), Health and Safety Code,   is amended to read as follows:          (c)  An offense under Subsection (a) is a felony of the third   degree with a maximum term of imprisonment of five years if the   amount of the controlled substance possessed is, by aggregate   weight, including adulterants or dilutants, 28 grams or more [but   less than 200 grams].          SECTION 1.06.  Section 481.118(c), Health and Safety Code,   is amended to read as follows:          (c)  An offense under Subsection (a) is a felony of the third   degree with a maximum term of imprisonment of five years if the   amount of the controlled substance possessed is, by aggregate   weight, including adulterants or dilutants, 28 grams or more [but   less than 200 grams].          SECTION 1.07.  Section 481.121(b), Health and Safety Code,   is amended to read as follows:          (b)  An offense under Subsection (a) is:                (1)  a Class B misdemeanor if the amount of marihuana   possessed is two ounces or less;                (2)  a Class A misdemeanor if the amount of marihuana   possessed is four ounces or less but more than two ounces;                (3)  a state jail felony if the amount of marihuana   possessed is five pounds or less but more than four ounces; and                (4)  a felony of the third degree with a maximum term of   imprisonment of five years if the amount of marihuana possessed is   [50 pounds or less but] more than 5 pounds[;                [(5)  a felony of the second degree if the amount of   marihuana possessed is 2,000 pounds or less but more than 50 pounds;   and                [(6)  punishable 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].          SECTION 1.08.  Sections 481.115(d), (e), and (f), 481.116(d)   and (e), 481.117(d) and (e), 481.118(d) and (e), and 481.134(c),   (d), (e), (f), and (g), Health and Safety Code, are repealed.   ARTICLE 2. PRIOR CONVICTIONS          SECTION 2.01.  Subchapter D, Chapter 12, Penal Code, is   amended by adding Section 12.495 to read as follows:          Sec. 12.495.  DRUG POSSESSION OFFENSES NOT SUBJECT TO   ENHANCEMENT. Notwithstanding any other provision of this   subchapter:                (1)  a previous conviction for an offense under Section   481.115, 481.1151, 481.116, 481.1161, 481.117, 481.118,   481.119(b), 481.121, or 481.125(a), Health and Safety Code, may not   be used for enhancement purposes under this subchapter; and                (2)  a previous conviction for any offense may not be   used for enhancing an offense under Section 481.115, 481.1151,   481.116, 481.1161, 481.117, 481.118, 481.119(b), 481.121, or   481.125(a), Health and Safety Code, under any provision of this   subchapter.   ARTICLE 3. CONFORMING CHANGES          SECTION 3.01.  Article 42A.054(a), Code of Criminal   Procedure, is amended to read as follows:          (a)  Article 42A.053 does not apply to a defendant adjudged   guilty of an offense under:                (1)  Section 15.03, Penal Code, if the offense is   punishable as a felony of the first degree;                (2)  Section 19.02, Penal Code (Murder);                (3)  Section 19.03, Penal Code (Capital Murder);                (4)  Section 20.04, Penal Code (Aggravated   Kidnapping);                (5)  Section 20A.02, Penal Code (Trafficking of   Persons);                (6)  Section 20A.03, Penal Code (Continuous   Trafficking of Persons);                (7)  Section 21.11, Penal Code (Indecency with a   Child);                (8)  Section 22.011, Penal Code (Sexual Assault);                (9)  Section 22.021, Penal Code (Aggravated Sexual   Assault);                (10)  Section 22.04(a)(1), Penal Code (Injury to a   Child, Elderly Individual, or Disabled Individual), if:                      (A)  the offense is punishable as a felony of the   first degree; and                      (B)  the victim of the offense is a child;                (11)  Section 29.03, Penal Code (Aggravated Robbery);                (12)  Section 30.02, Penal Code (Burglary), if:                      (A)  the offense is punishable under Subsection   (d) of that section; and                      (B)  the actor committed the offense with the   intent to commit a felony under Section 21.02, 21.11, 22.011,   22.021, or 25.02, Penal Code;                (13)  Section 43.04, Penal Code (Aggravated Promotion   of Prostitution);                (14)  Section 43.05, Penal Code (Compelling   Prostitution);                (15)  Section 43.25, Penal Code (Sexual Performance by   a Child); or                (16)  Chapter 481, Health and Safety Code, for which   punishment is increased under[:                      [(A)]  Section 481.140 of that code (Use of Child   in Commission of Offense)[; or                      [(B)  Section 481.134(c), (d), (e), or (f) of that   code (Drug-free Zones) if it is shown that the defendant has been   previously convicted of an offense for which punishment was   increased under any of those subsections].          SECTION 3.02.  Article 42A.056, Code of Criminal Procedure,   is amended to read as follows:          Art. 42A.056.  LIMITATION ON JURY-RECOMMENDED COMMUNITY   SUPERVISION. A defendant is not eligible for community supervision   under Article 42A.055 if the defendant:                (1)  is sentenced to a term of imprisonment that   exceeds 10 years;                (2)  is convicted of a state jail felony for which   suspension of the imposition of the sentence occurs automatically   under Article 42A.551;                (3)  is adjudged guilty of an offense under Section   19.02, Penal Code;                (4)  is convicted of an offense under Section 21.11,   22.011, or 22.021, Penal Code, if the victim of the offense was   younger than 14 years of age at the time the offense was committed;                (5)  is convicted of an offense under Section 20.04,   Penal Code, if:                      (A)  the victim of the offense was younger than 14   years of age at the time the offense was committed; and                      (B)  the actor committed the offense with the   intent to violate or abuse the victim sexually; or                (6)  is convicted of an offense under Section 20A.02,   20A.03, 43.04, 43.05, or 43.25, Penal Code[; or                [(7)  is convicted of an offense for which punishment   is increased under Section 481.134(c), (d), (e), or (f), Health and   Safety Code, if it is shown that the defendant has been previously   convicted of an offense for which punishment was increased under   any of those subsections].          SECTION 3.03.  Article 42A.102(b), Code of Criminal   Procedure, as amended by Chapters 1137 (H.B. 2758) and 1298 (H.B.   3582), Acts of the 86th Legislature, Regular Session, 2019, is   reenacted and amended to read as follows:          (b)  In all other cases, the judge may grant deferred   adjudication community supervision unless:                (1)  the defendant is charged with an offense:                      (A)  under Section 20A.02, [or] 20A.03, [or]   49.045, 49.05, 49.065, 49.07, or 49.08, Penal Code;                      (B)  under Section 49.04 or 49.06, Penal Code,   and, at the time of the offense:                            (i)  the defendant held a commercial   driver's license or a commercial learner's permit; or                            (ii)  the defendant's alcohol concentration,   as defined by Section 49.01, Penal Code, was 0.15 or more; or                      (C)  for which punishment may be increased under   Section 49.09, Penal Code; [or                      [(D)  for which punishment may be increased under   Section 481.134(c), (d), (e), or (f), Health and Safety Code, if it   is shown that the defendant has been previously convicted of an   offense for which punishment was increased under any one of those   subsections;]                (2)  the defendant:                      (A)  is charged with an offense under Section   21.11, 22.011, 22.021, 43.04, or 43.05, Penal Code, regardless of   the age of the victim, or a felony described by Article 42A.453(b),   other than a felony described by Subdivision (1)(A) or (3)(B) of   this subsection; and                      (B)  has previously been placed on community   supervision for an offense under Paragraph (A);                (3)  the defendant is charged with an offense under:                      (A)  Section 21.02, Penal Code; or                      (B)  Section 22.021, Penal Code, that is   punishable under Subsection (f) of that section or under Section   12.42(c)(3) or (4), Penal Code; or                (4)  the defendant is charged with an offense under   Section 19.02, Penal Code, except that the judge may grant deferred   adjudication community supervision on determining that the   defendant did not cause the death of the deceased, did not intend to   kill the deceased or another, and did not anticipate that a human   life would be taken.          SECTION 3.04.  Section 481.126, Health and Safety Code, is   amended to read as follows:          Sec. 481.126.  OFFENSE: ILLEGAL BARTER, EXPENDITURE, OR   INVESTMENT. (a) A person commits an offense if the person:                (1)  barters property or expends funds the person knows   are derived from the commission of an offense under this chapter   punishable by imprisonment in the Texas Department of Criminal   Justice for life; or                (2)  [barters property or expends funds the person   knows are derived from the commission of an offense under Section   481.121(a) that is punishable under Section 481.121(b)(5);                [(3)]  barters property or finances or invests funds   the person knows or believes are intended to further the commission   of an offense for which the punishment is described by Subdivision   (1)[; or                [(4)  barters property or finances or invests funds the   person knows or believes are intended to further the commission of   an offense under Section 481.121(a) that is punishable under   Section 481.121(b)(5)].          (b)  An offense under this section [Subsection (a)(1) or (3)]   is a felony of the first degree. [An offense under Subsection   (a)(2) or (4) is a felony of the second degree.]          SECTION 3.05.  Section 71.023(a), Penal Code, is amended to   read as follows:          (a)  A person commits an offense if the person, as part of the   identifiable leadership of a criminal street gang, knowingly   finances, directs, or supervises the commission of, or a conspiracy   to commit, one or more of the following offenses by members of a   criminal street gang:                (1)  a felony offense that is listed in Article   42A.054(a), Code of Criminal Procedure;                (2)  a felony offense for which it is shown that a   deadly weapon, as defined by Section 1.07, was used or exhibited   during the commission of the offense or during immediate flight   from the commission of the offense; or                (3)  an offense that is punishable under Section   481.112(e), 481.112(f), 481.1121(b)(4), [481.115(f),] or   481.120(b)(6), Health and Safety Code.   ARTICLE 4. TRANSITION; EFFECTIVE DATE          SECTION 4.01.  The changes in law made by this Act apply to   an offense committed before, on, or after September 1, 2021, except   that a final conviction for an offense that exists on September 1,   2021, is unaffected by this Act.          SECTION 4.02.  To the extent of any conflict, this Act   prevails over another Act of the 87th Legislature, Regular Session,   2021, relating to nonsubstantive additions to and corrections in   enacted codes.          SECTION 4.03.  This Act takes effect September 1, 2021.