2021S0126-2 03/03/21     By: White H.B. No. 3772     A BILL TO BE ENTITLED   AN ACT   relating to the criminal and licensing consequences of certain   criminal offenses involving the possession or delivery of marihuana   and cannabis concentrate or possession of drug paraphernalia;   imposing a fee; authorizing a fine.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  Section 481.002, Health and Safety Code, is   amended by amending Subdivision (26) and adding Subdivision (57) to   read as follows:                (26)  "Marihuana" means any part of a [the] plant of the   genus Cannabis [Cannabis sativa L.], whether growing or not, with a   concentration of delta-9 tetrahydrocannabinol of one percent or   more by weight and:                      (A)  includes:                            (i)  the seeds of that plant; and                            (ii)  cannabis concentrate;[,] and                      (B)  [every compound, manufacture, salt,   derivative, mixture, or preparation of that plant or its seeds. The   term] does not include:                            (i)  any material excluded from the federal   Controlled Substances Act definition of marihuana under 21 U.S.C.   Section 802(16)(B);                            (ii)  cannabis plant material and products   that contain tetrahydrocannabinol and are exempted from the federal   Controlled Substances Act under 21 C.F.R. Section 1308.35;                            (iii)  [(A)  the resin extracted from a part   of the plant or a compound, manufacture, salt, derivative, mixture,   or preparation of the resin;                      [(B)  the mature stalks of the plant or fiber   produced from the stalks;                      [(C)  oil or cake made from the seeds of the plant;                      [(D)  a compound, manufacture, salt, derivative,   mixture, or preparation of the mature stalks, fiber, oil, or cake;                      [(E)  the sterilized seeds of the plant that are   incapable of beginning germination; or                      [(F)]  hemp, as that term is defined by Section   121.001, Agriculture Code;                             (iv)  a nonconsumable hemp product, as that   term is defined by Section 122.001, Agriculture Code; or                            (v)  a consumable hemp product, as that term   is defined by Section 443.001.                (57)  "Cannabis concentrate" means the processed forms   of a plant of the genus Cannabis containing five milligrams or more   of delta-9 tetrahydrocannabinol, including:                      (A)  the resin extracted from the plant; and                      (B)  compounds, manufactures, salts, derivatives,   decarboxylates, mixtures, or preparations of the plant or the resin   extracted from the plant.          SECTION 2.  Section 481.103, Health and Safety Code, is   amended by adding Subsection (d) to read as follows:          (d)  Penalty Group 2 does not include:                (1)  any material excluded from the definition of   marihuana by Section 481.002(26)(B);                (2)  a plant of the Cannabis genus with a delta-9   tetrahydrocannabinol concentration of less than one percent by   weight; or                (3)  a processed form of a plant of the genus Cannabis   containing less than five milligrams of delta-9   tetrahydrocannabinol.          SECTION 3.  Section 481.111(e), Health and Safety Code, is   amended to read as follows:          (e)  Sections 481.113, 481.116, 481.120, 481.121, 481.122,   and 481.125 do not apply to a person who engages in the acquisition,   possession, production, cultivation, delivery, or disposal of a raw   material used in or by-product created by the production or   cultivation of low-THC cannabis if the person:                (1)  for an offense involving possession only of   marihuana or drug paraphernalia, is a patient for whom low-THC   cannabis is prescribed under Chapter 169, Occupations Code, or the   patient's legal guardian, and the person possesses low-THC cannabis   obtained under a valid prescription from a dispensing organization;   or                (2)  is a director, manager, or employee of a   dispensing organization and the person, solely in performing the   person's regular duties at the organization, acquires, possesses,   produces, cultivates, dispenses, or disposes of:                      (A)  in reasonable quantities, any low-THC   cannabis or raw materials used in or by-products created by the   production or cultivation of low-THC cannabis; or                      (B)  any drug paraphernalia used in the   acquisition, possession, production, cultivation, delivery, or   disposal of low-THC cannabis.          SECTION 4.  Section 481.120(b), Health and Safety Code, is   amended to read as follows:          (b)  An offense under Subsection (a) is:                (1)  a Class B misdemeanor if:                      (A)  the person committing the offense does not   receive remuneration for the marihuana; and                      (B)  the amount [of marihuana] delivered is:                            (i)  one-fourth ounce or less of marihuana   other than cannabis concentrate [and the person committing the   offense does not receive remuneration for the marihuana]; or                            (ii)  cannabis concentrate containing 70   milligrams or less of delta-9 tetrahydrocannabinol;                (2)  except as provided by Subdivision (1), a Class A   misdemeanor if the amount [of marihuana] delivered is:                      (A)  two ounces [one-fourth ounce] or less of   marihuana other than cannabis concentrate [and the person   committing the offense receives remuneration for the marihuana]; or                      (B)  cannabis concentrate containing 560   milligrams or less of delta-9 tetrahydrocannabinol;                (3)  a state jail felony if:                      (A)  the amount of marihuana other than cannabis   concentrate delivered is 2.5 [five] pounds or less but more than two   ounces [one-fourth ounce]; or                      (B)  the amount of delta-9 tetrahydrocannabinol   in cannabis concentrate delivered is 11 grams or less but more than   560 milligrams;                (4)  a felony of the third [second] degree if:                      (A)  the amount of marihuana other than cannabis   concentrate delivered is 25 [50] pounds or less but more than 2.5   [five] pounds; or                      (B)  the amount of delta-9 tetrahydrocannabinol   in cannabis concentrate delivered is 110 grams or less but more than   11 grams;                (5)  a felony of the second [first] degree if:                      (A)  the amount of marihuana other than cannabis   concentrate delivered is 1,000 [2,000] pounds or less but more than   25 [50] pounds; or                      (B)  the amount of delta-9 tetrahydrocannabinol   in cannabis concentrate delivered is 4.5 kilograms or less but more   than 110 grams; and                (6)  a felony of the first degree [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 10 years, and a   fine not to exceed $100,000,] if:                      (A)  the amount of marihuana other than cannabis   concentrate delivered is more than 1,000 [2,000] pounds; or                      (B)  the amount of delta-9 tetrahydrocannabinol   in cannabis concentrate delivered is more than 4.5 kilograms.          SECTION 5.  Section 481.121(b), Health and Safety Code, is   amended to read as follows:          (b)  An offense under Subsection (a) is:                (1)  a Class C misdemeanor if:                      (A)  the amount of marihuana other than cannabis   concentrate possessed is one ounce or less; or                      (B)  the amount of delta-9 tetrahydrocannabinol   in cannabis concentrate possessed is 280 milligrams or less;                (1-a)  a Class B misdemeanor if:                      (A)  the amount of marihuana other than cannabis   concentrate possessed is two ounces or less but more than one ounce;   or                      (B)  the amount of delta-9 tetrahydrocannabinol   in cannabis concentrate possessed is 560 milligrams or less but   more than 280 milligrams;                (2)  a Class A misdemeanor if:                      (A)  the amount of marihuana other than cannabis   concentrate possessed is four ounces or less but more than two   ounces; or                      (B)  the amount of delta-9 tetrahydrocannabinol   in cannabis concentrate possessed is 1.1 grams or less but more than   560 milligrams;                (3)  a state jail felony if:                      (A)  the amount of marihuana other than cannabis   concentrate possessed is five pounds or less but more than four   ounces; or                      (B)  the amount of delta-9 tetrahydrocannabinol   in cannabis concentrate possessed is 22 grams or less but more than   1.1 grams;                (4)  a felony of the third degree if:                      (A)  the amount of marihuana other than cannabis   concentrate possessed is 50 pounds or less but more than 5 pounds;   or                      (B)  the amount of delta-9 tetrahydrocannabinol   in cannabis concentrate possessed is 220 grams or less but more than   22 grams;                (5)  a felony of the second degree if:                      (A)  the amount of marihuana other than cannabis   concentrate possessed is 2,000 pounds or less but more than 50   pounds; or                      (B)  the amount of delta-9 tetrahydrocannabinol   in cannabis concentrate possessed is 9 kilograms or less but more   than 220 grams; and                (6)  a felony of the first degree [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:                      (A)  the amount of marihuana other than cannabis   concentrate possessed is more than 2,000 pounds; or                      (B)  the amount of delta-9 tetrahydrocannabinol   in cannabis concentrate possessed is more than 9 kilograms.          SECTION 6.  Section 481.122(b), Health and Safety Code, is   amended to read as follows:          (b)  It is an affirmative defense to prosecution under this   section that:                (1)  the actor was a child when the offense was   committed; or                (2)  the actor:                      (A)  was younger than 21 years of age when the   offense was committed;                      (B)  delivered only marihuana in an amount equal   to or less than:                            (i)  one-fourth ounce of marihuana other   than cannabis concentrate; or                            (ii)  cannabis concentrate containing 70   milligrams of delta-9 tetrahydrocannabinol; and                      (C)  did not receive remuneration for the   delivery.          SECTION 7.  Section 481.134(f), Health and Safety Code, is   amended to read as follows:          (f)  An offense otherwise punishable under Section   481.118(b), 481.119(b), 481.120(b)(1), or 481.121(b)(1-a)   [481.121(b)(1)] is a Class A misdemeanor if it is shown on the trial   of the offense that the offense was committed:                (1)  in, on, or within 1,000 feet of any real property   that is owned, rented, or leased to a school or school board, the   premises of a public or private youth center, or a playground; or                (2)  on a school bus.          SECTION 8.  Article 14.06(d), Code of Criminal Procedure, is   amended to read as follows:          (d)  Subsection (c) applies only to a person charged with   committing an offense under:                (1)  Section 481.121, Health and Safety Code, if the   offense is punishable under Subsection (b)(1-a) [(b)(1)] or (2) of   that section;                (1-a)  Section 481.1161, Health and Safety Code, if the   offense is punishable under Subsection (b)(1) or (2) of that   section;                (2)  Section 28.03, Penal Code, if the offense is   punishable under Subsection (b)(2) of that section;                (3)  Section 28.08, Penal Code, if the offense is   punishable under Subsection (b)(2) or (3) of that section;                (4)  Section 31.03, Penal Code, if the offense is   punishable under Subsection (e)(2)(A) of that section;                (5)  Section 31.04, Penal Code, if the offense is   punishable under Subsection (e)(2) of that section;                (6)  Section 38.114, Penal Code, if the offense is   punishable as a Class B misdemeanor; or                (7)  Section 521.457, Transportation Code.          SECTION 9.  Article 42A.551(c), Code of Criminal Procedure,   is amended to read as follows:          (c)  Subsection (a) does not apply to a defendant who:                (1)  under Section 481.1151(b)(1), Health and Safety   Code, possessed more than five abuse units of the controlled   substance;                (2)  under Section 481.1161(b)(3), Health and Safety   Code, possessed more than one pound, by aggregate weight, including   adulterants or dilutants, of the controlled substance; or                (3)  under Section 481.121(b)(3), Health and Safety   Code, possessed:                      (A)  more than one pound of marihuana other than   cannabis concentrate; or                      (B)  cannabis concentrate with more than 4.5 grams   of delta-9 tetrahydrocannabinol.          SECTION 10.  Subchapter B, Chapter 45, Code of Criminal   Procedure, is amended by adding Article 45.02161 to read as   follows:          Art. 45.02161.  EXPUNCTION OF CERTAIN RECORDS. (a) This   article applies only to a person charged with an offense under   Section 481.121(b)(1) or 481.125(a), Health and Safety Code.          (b)  Records of a person relating to a complaint may be   expunged under this article if:                (1)  the complaint was dismissed under Article 45.051   or 45.052 or other law and:                      (A)  at least 180 days have elapsed from the date   of the dismissal; or                      (B)  at least one year has elapsed from the date of   the citation; or                (2)  the person was acquitted of the offense.          (c)  A court that dismisses a complaint to which this article   applies shall provide written notice to the person of the person's   right to expunction under this article as soon as practicable after   the date the person becomes eligible for expunction.          (d)  The person must make a written request to have the   records expunged. The request must be under oath.          (e)  The court shall order all complaints, verdicts,   sentences, and prosecutorial and law enforcement records and any   other documents relating to the offense expunged from the person's   record if the court finds that the person satisfies the   requirements of this article.          (f)  The justice or municipal court shall require a person   who requests expungement under this article to pay a fee in the   amount of $30 to defray the cost of notifying state agencies of   orders of expungement under this article.          (g)  The procedures for expunction provided under this   article are separate and distinct from the expunction procedures   under Chapter 55.          SECTION 11.  Article 45.051, Code of Criminal Procedure, is   amended by adding Subsection (a-2) to read as follows:          (a-2)  Unless the defendant has previously received a   deferral of disposition for an offense under Section 481.121(b)(1)   or 481.125(a), Health and Safety Code, committed within the   12-month period preceding the date of the commission of the instant   offense, on plea of guilty or nolo contendere for either offense,   the judge shall defer further proceedings without entering an   adjudication of guilt and place the defendant on probation under   the provisions of this article.          SECTION 12.  Subchapter A, Chapter 102, Code of Criminal   Procedure, is amended by adding Article 102.0179 to read as   follows:          Art. 102.0179.  FINE FOR CERTAIN DRUG AND TEXAS CONTROLLED   SUBSTANCES ACT CONVICTIONS:  MOBILITY FUND. (a) In addition to any   other fees and fines imposed under this subchapter, a defendant   convicted of an offense described by Section 521.372(a),   Transportation Code, punishable by fine only shall pay a fine in an   amount that is equivalent to the sum of all fees applicable to a   suspension and reinstatement of a driver's license under Chapter   521, Transportation Code. The Department of Public Safety shall   annually calculate and make available the amount of the fine   described by this subsection.          (b)  The court shall waive imposition of a fine under this   article if the defendant's driver's license is suspended under   Chapter 521, Transportation Code, as a result of the conviction of   another offense arising from the same criminal episode.          (c)  The court shall collect the fine under this article in   the same manner as court costs are collected in the case.          (d)  A fine collected under this article shall be deposited   to the credit of the Texas mobility fund.          SECTION 13.  Section 411.0728(a), Government Code, is   amended to read as follows:          (a)  This section applies only to a person:                (1)  who is convicted of or placed on deferred   adjudication community supervision for an offense under:                      (A)  Section 481.120, Health and Safety Code, if   the offense is punishable under Subsection (b)(1);                      (B)  Section 481.121, Health and Safety Code, if   the offense is punishable under Subsection (b)(1-a) [(b)(1)];                      (C)  Section 31.03, Penal Code, if the offense is   punishable under Subsection (e)(1) or (2); or                      (D)  Section 43.02, Penal Code; and                (2)  who, if requested by the applicable law   enforcement agency or prosecuting attorney to provide assistance in   the investigation or prosecution of an offense under Section   20A.02, 20A.03, or 43.05, Penal Code, or a federal offense   containing elements that are substantially similar to the elements   of an offense under any of those sections:                      (A)  provided assistance in the investigation or   prosecution of the offense; or                      (B)  did not provide assistance in the   investigation or prosecution of the offense due to the person's age   or a physical or mental disability resulting from being a victim of   an offense described by this subdivision.          SECTION 14.  Section 521.372, Transportation Code, is   amended by adding Subsection (d) to read as follows:          (d)  This section does not apply to a drug offense punishable   by fine only under the laws of this state.          SECTION 15.  The changes in law made by this Act apply only   to an offense committed on or after the effective date of this Act.   An offense committed before the effective date of this Act is   governed by the law in effect on the date the offense was committed,   and the former law is continued in effect for that purpose. For   purposes of this section, an offense was committed before the   effective date of this Act if any element of the offense was   committed before that date.          SECTION 16.  (a) Except as otherwise provided by this   section, this Act takes effect September 1, 2021.          (b)  Article 102.0179, Code of Criminal Procedure, and   Section 521.372(d), Transportation Code, as added by this Act, take   effect on the 91st day after the date the office of the attorney   general publishes in the Texas Register a finding that:                (1)  the legislature of this state has adopted a   resolution expressing the legislature's opposition to a law meeting   the requirements of 23 U.S.C. Section 159 in suspending, revoking,   or denying the driver's license of a person convicted of a drug   offense punishable by fine only for a period of six months;                (2)  the governor of this state has submitted to the   United States secretary of transportation:                      (A)  a written certification of the governor's   opposition to the enactment or enforcement of a law required under   23 U.S.C. Section 159 as that law relates to offenses punishable by   fine only; and                      (B)  a written certification that the legislature   has adopted the resolution described by Subdivision (1) of this   subsection; and                (3)  the United States secretary of transportation has   responded to the governor's submission and certified that highway   funds will not be withheld from this state in response to the   partial repeal of the law required under 23 U.S.C. Section 159.