88R863 JSC-D     By: Eckhardt S.B. No. 208       A BILL TO BE ENTITLED   AN ACT   relating to the criminal penalties for delivery and possession of   marihuana and citations given for those offenses.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  Article 14.01, Code of Criminal Procedure, is   amended by adding Subsection (c) to read as follows:          (c)  Notwithstanding Subsection (a) or (b), a peace officer   or any other person may not, without a warrant, arrest an offender   for a misdemeanor punishable by fine only under Section   481.120(b)(1) or 481.121(b)(1), Health and Safety Code.          SECTION 2.  Article 14.03, Code of Criminal Procedure, is   amended by adding Subsection (i) to read as follows:          (i)  Notwithstanding Subsection (a), (d), or (g), a peace   officer may not, without a warrant, arrest a person who only commits   an offense punishable by fine only under Section 481.120(b)(1) or   481.121(b)(1), Health and Safety Code.          SECTION 3.  Article 14.06, Code of Criminal Procedure, is   amended by adding Subsections (b-1) and (b-2) and amending   Subsection (d) to read as follows:          (b-1)  A peace officer who is charging a person with   committing an offense under Section 481.120(b)(1) or   481.121(b)(1), Health and Safety Code, may not arrest the person   and shall issue the person a citation as provided by Subsection (b).          (b-2)  Subsection (b-1) does not apply to an officer making   an arrest for an offense other than an offense under Section   481.120(b)(1) or 481.121(b)(1), Health and Safety Code.          (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 4.  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; or                (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 more than one pound of marihuana].          SECTION 5.  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-a) [(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 6.  Section 481.115(h), Health and Safety Code, is   amended to read as follows:          (h)  The defense to prosecution provided by Subsection (g) is   not available if:                (1)  at the time the request for emergency medical   assistance was made:                      (A)  a peace officer was in the process of   arresting the actor or executing a search warrant describing the   actor or the place from which the request for medical assistance was   made; or                      (B)  the actor is committing another offense,   other than an offense punishable under Section 481.1151(b)(1),   481.116(b), 481.1161(b)(1) or (2), 481.117(b), 481.118(b), or   481.121(b)(1), (1-a), or (2), or an offense under Section   481.119(b), 481.125(a), 483.041(a), or 485.031(a);                (2)  the actor has been previously convicted of or   placed on deferred adjudication community supervision for an   offense under this chapter or Chapter 483 or 485;                (3)  the actor was acquitted in a previous proceeding   in which the actor successfully established the defense under that   subsection or Section 481.1151(c), 481.116(f), 481.1161(c),   481.117(f), 481.118(f), 481.119(c), 481.121(c), 481.125(g),   483.041(e), or 485.031(c); or                (4)  at any time during the 18-month period preceding   the date of the commission of the instant offense, the actor   requested emergency medical assistance in response to the possible   overdose of the actor or another person.          SECTION 7.  Section 481.1151(d), Health and Safety Code, is   amended to read as follows:          (d)  The defense to prosecution provided by Subsection (c) is   not available if:                (1)  at the time the request for emergency medical   assistance was made:                      (A)  a peace officer was in the process of   arresting the actor or executing a search warrant describing the   actor or the place from which the request for medical assistance was   made; or                      (B)  the actor is committing another offense,   other than an offense punishable under Section 481.115(b),   481.116(b), 481.1161(b)(1) or (2), 481.117(b), 481.118(b), or   481.121(b)(1), (1-a), or (2), or an offense under Section   481.119(b), 481.125(a), 483.041(a), or 485.031(a);                (2)  the actor has been previously convicted of or   placed on deferred adjudication community supervision for an   offense under this chapter or Chapter 483 or 485;                (3)  the actor was acquitted in a previous proceeding   in which the actor successfully established the defense under that   subsection or Section 481.115(g), 481.116(f), 481.1161(c),   481.117(f), 481.118(f), 481.119(c), 481.121(c), 481.125(g),   483.041(e), or 485.031(c); or                (4)  at any time during the 18-month period preceding   the date of the commission of the instant offense, the actor   requested emergency medical assistance in response to the possible   overdose of the actor or another person.          SECTION 8.  Section 481.1161(d), Health and Safety Code, is   amended to read as follows:          (d)  The defense to prosecution provided by Subsection (c) is   not available if:                (1)  at the time the request for emergency medical   assistance was made:                      (A)  a peace officer was in the process of   arresting the actor or executing a search warrant describing the   actor or the place from which the request for medical assistance was   made; or                      (B)  the actor is committing another offense,   other than an offense punishable under Section 481.115(b),   481.1151(b)(1), 481.116(b), 481.117(b), 481.118(b), or   481.121(b)(1), (1-a), or (2), or an offense under Section   481.119(b), 481.125(a), 483.041(a), or 485.031(a);                (2)  the actor has been previously convicted of or   placed on deferred adjudication community supervision for an   offense under this chapter or Chapter 483 or 485;                (3)  the actor was acquitted in a previous proceeding   in which the actor successfully established the defense under that   subsection or Section 481.115(g), 481.1151(c), 481.116(f),   481.117(f), 481.118(f), 481.119(c), 481.121(c), 481.125(g),   483.041(e), or 485.031(c); or                (4)  at any time during the 18-month period preceding   the date of the commission of the instant offense, the actor   requested emergency medical assistance in response to the possible   overdose of the actor or another person.          SECTION 9.  Section 481.117(g), Health and Safety Code, is   amended to read as follows:          (g)  The defense to prosecution provided by Subsection (f) is   not available if:                (1)  at the time the request for emergency medical   assistance was made:                      (A)  a peace officer was in the process of   arresting the actor or executing a search warrant describing the   actor or the place from which the request for medical assistance was   made; or                      (B)  the actor is committing another offense,   other than an offense punishable under Section 481.115(b),   481.1151(b)(1), 481.116(b), 481.1161(b)(1) or (2), 481.118(b), or   481.121(b)(1), (1-a), or (2), or an offense under Section   481.119(b), 481.125(a), 483.041(a), or 485.031(a);                (2)  the actor has been previously convicted of or   placed on deferred adjudication community supervision for an   offense under this chapter or Chapter 483 or 485;                (3)  the actor was acquitted in a previous proceeding   in which the actor successfully established the defense under that   subsection or Section 481.115(g), 481.1151(c), 481.116(f),   481.1161(c), 481.118(f), 481.119(c), 481.121(c), 481.125(g),   483.041(e), or 485.031(c); or                (4)  at any time during the 18-month period preceding   the date of the commission of the instant offense, the actor   requested emergency medical assistance in response to the possible   overdose of the actor or another person.          SECTION 10.  Section 481.118(g), Health and Safety Code, is   amended to read as follows:          (g)  The defense to prosecution provided by Subsection (f) is   not available if:                (1)  at the time the request for emergency medical   assistance was made:                      (A)  a peace officer was in the process of   arresting the actor or executing a search warrant describing the   actor or the place from which the request for medical assistance was   made; or                      (B)  the actor is committing another offense,   other than an offense punishable under Section 481.115(b),   481.1151(b)(1), 481.116(b), 481.1161(b)(1) or (2), 481.117(b), or   481.121(b)(1), (1-a), or (2), or an offense under Section   481.119(b), 481.125(a), 483.041(a), or 485.031(a);                (2)  the actor has been previously convicted of or   placed on deferred adjudication community supervision for an   offense under this chapter or Chapter 483 or 485;                (3)  the actor was acquitted in a previous proceeding   in which the actor successfully established the defense under that   subsection or Section 481.115(g), 481.1151(c), 481.116(f),   481.1161(c), 481.117(f), 481.119(c), 481.121(c), 481.125(g),   483.041(e), or 485.031(c); or                (4)  at any time during the 18-month period preceding   the date of the commission of the instant offense, the actor   requested emergency medical assistance in response to the possible   overdose of the actor or another person.          SECTION 11.  Section 481.119(d), Health and Safety Code, is   amended to read as follows:          (d)  The defense to prosecution provided by Subsection (c) is   not available if:                (1)  at the time the request for emergency medical   assistance was made:                      (A)  a peace officer was in the process of   arresting the actor or executing a search warrant describing the   actor or the place from which the request for medical assistance was   made; or                      (B)  the actor is committing another offense,   other than an offense punishable under Section 481.115(b),   481.1151(b)(1), 481.116(b), 481.1161(b)(1) or (2), 481.117(b),   481.118(b), or 481.121(b)(1), (1-a), or (2), or an offense under   Section 481.125(a), 483.041(a), or 485.031(a);                (2)  the actor has been previously convicted of or   placed on deferred adjudication community supervision for an   offense under this chapter or Chapter 483 or 485;                (3)  the actor was acquitted in a previous proceeding   in which the actor successfully established the defense under that   subsection or Section 481.115(g), 481.1151(c), 481.116(f),   481.1161(c), 481.117(f), 481.118(f), 481.121(c), 481.125(g),   483.041(e), or 485.031(c); or                (4)  at any time during the 18-month period preceding   the date of the commission of the instant offense, the actor   requested emergency medical assistance in response to the possible   overdose of the actor or another person.          SECTION 12.  Section 481.120(b), Health and Safety Code, is   amended to read as follows:          (b)  An offense under Subsection (a) is:                (1)  a Class C [B] misdemeanor if the amount of   marihuana delivered is one-fourth ounce or less and the person   committing the offense does not receive remuneration for the   marihuana;                (1-a) [(2)]  a Class B [A] misdemeanor if the amount of   marihuana delivered is one-fourth ounce or less and the person   committing the offense receives remuneration for the marihuana;                (2) [(3)]  a Class A misdemeanor [state jail felony] if   the amount of marihuana delivered is five pounds or less but more   than one-fourth ounce;                (3) [(4)]  a state jail felony [of the second degree]   if the amount of marihuana delivered is 50 pounds or less but more   than five pounds;                (4) [(5)]  a felony of the second [first] degree if the   amount of marihuana delivered is 2,000 pounds or less but more than   50 pounds; and                (5)  a felony of the first degree [(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 10 years, and a   fine not to exceed $100,000,] if the amount of marihuana delivered   is more than 2,000 pounds.          SECTION 13.  Sections 481.121(a), (b), and (c), Health and   Safety Code, are amended to read as follows:          (a)  Except as authorized by this chapter, a person commits   an offense if the person knowingly or intentionally possesses a   usable quantity of more than one ounce of marihuana.          (b)  An offense under Subsection (a) is:                (1)  a Class C [B] misdemeanor if the amount of   marihuana possessed is two ounces or less but more than one ounce;                (1-a) [(2)]  a Class B [A] misdemeanor if the amount of   marihuana possessed is four ounces or less but more than two ounces;                (2) [(3)]  a Class A misdemeanor [state jail felony] if   the amount of marihuana possessed is five pounds or less but more   than four ounces;                (3) [(4)]  a state jail felony [of the third degree] if   the amount of marihuana possessed is 50 pounds or less but more than   5 pounds;                (4) [(5)]  a felony of the third [second] degree if the   amount of marihuana possessed is 2,000 pounds or less but more than   50 pounds; and                (5)  a felony of the second degree [(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.          (c)  It is a defense to prosecution for an offense punishable   under Subsection (b)(1), (1-a), or (2) that the actor:                (1)  was the first person to request emergency medical   assistance in response to the possible overdose of another person   and:                      (A)  made the request for medical assistance   during an ongoing medical emergency;                      (B)  remained on the scene until the medical   assistance arrived; and                      (C)  cooperated with medical assistance and law   enforcement personnel; or                (2)  was the victim of a possible overdose for which   emergency medical assistance was requested, by the actor or by   another person, during an ongoing medical emergency.          SECTION 14.  Section 481.125(h), Health and Safety Code, is   amended to read as follows:          (h)  The defense to prosecution provided by Subsection (g) is   not available if:                (1)  at the time the request for emergency medical   assistance was made:                      (A)  a peace officer was in the process of   arresting the actor or executing a search warrant describing the   actor or the place from which the request for medical assistance was   made; or                      (B)  the actor is committing another offense,   other than an offense punishable under Section 481.115(b),   481.1151(b)(1), 481.116(b), 481.1161(b)(1) or (2), 481.117(b),   481.118(b), or 481.121(b)(1), (1-a), or (2), or an offense under   Section 481.119(b), 483.041(a), or 485.031(a);                (2)  the actor has been previously convicted of or   placed on deferred adjudication community supervision for an   offense under this chapter or Chapter 483 or 485;                (3)  the actor was acquitted in a previous proceeding   in which the actor successfully established the defense under that   subsection or Section 481.115(g), 481.1151(c), 481.116(f),   481.1161(c), 481.117(f), 481.118(f), 481.119(c), 481.121(c),   483.041(e), or 485.031(c); or                (4)  at any time during the 18-month period preceding   the date of the commission of the instant offense, the actor   requested emergency medical assistance in response to the possible   overdose of the actor or another person.          SECTION 15.  Section 481.134(c), Health and Safety Code, as   amended by Chapters 584 (S.B. 768) and 807 (H.B. 1540), Acts of the   87th Legislature, Regular Session, 2021, is reenacted and amended   to read as follows:          (c)  The minimum term of confinement or imprisonment for an   offense otherwise punishable under Section 481.112(c), (d), (e), or   (f), 481.1121(b)(2), (3), or (4), 481.1123(c), (d), (e), or (f),   481.113(c), (d), or (e), 481.114(c), (d), or (e), 481.115(c), (d),   (e), or (f) [481.115(c)-(f)], 481.1151(b)(2), (3), (4), or (5),   481.116(c), (d), or (e), 481.1161(b)(4), (5), or (6), 481.117(c),   (d), or (e), 481.118(c), (d), or (e), 481.120(b)(4) or[,] (5), [or   (6),] or 481.121(b)(4) or[,] (5)[, or (6)] is increased by five   years and the maximum fine for the offense is doubled if it is shown   on the trial of the offense that the offense was committed:                (1)  in, on, or within 1,000 feet of the premises of a   school, the premises of a public or private youth center, or a   playground;                (2)  on a school bus; or                (3)  by any unauthorized person 18 years of age or   older, in, on, or within 1,000 feet of premises owned, rented, or   leased by a general residential operation operating as a   residential treatment center.          SECTION 16.  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-a) [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;                (2)  on a school bus; or                (3)  by any unauthorized person 18 years of age or   older, in, on, or within 1,000 feet of premises owned, rented, or   leased by a general residential operation operating as a   residential treatment center.          SECTION 17.  Section 483.041(f), Health and Safety Code, is   amended to read as follows:          (f)  The defense to prosecution provided by Subsection (e) is   not available if:                (1)  at the time the request for emergency medical   assistance was made:                      (A)  a peace officer was in the process of   arresting the actor or executing a search warrant describing the   actor or the place from which the request for medical assistance was   made; or                      (B)  the actor is committing another offense,   other than an offense punishable under Section 481.115(b),   481.1151(b)(1), 481.116(b), 481.1161(b)(1) or (2), 481.117(b),   481.118(b), or 481.121(b)(1), (1-a), or (2), or an offense under   Section 481.119(b), 481.125(a), or 485.031(a);                (2)  the actor has been previously convicted of or   placed on deferred adjudication community supervision for an   offense under this chapter or Chapter 481 or 485;                (3)  the actor was acquitted in a previous proceeding   in which the actor successfully established the defense under that   subsection or Section 481.115(g), 481.1151(c), 481.116(f),   481.1161(c), 481.117(f), 481.118(f), 481.119(c), 481.121(c),   481.125(g), or 485.031(c); or                (4)  at any time during the 18-month period preceding   the date of the commission of the instant offense, the actor   requested emergency medical assistance in response to the possible   overdose of the actor or another person.          SECTION 18.  Section 485.031(d), Health and Safety Code, is   amended to read as follows:          (d)  The defense to prosecution provided by Subsection (c) is   not available if:                (1)  at the time the request for emergency medical   assistance was made:                      (A)  a peace officer was in the process of   arresting the actor or executing a search warrant describing the   actor or the place from which the request for medical assistance was   made; or                      (B)  the actor is committing another offense,   other than an offense punishable under Section 481.115(b),   481.1151(b)(1), 481.116(b), 481.1161(b)(1) or (2), 481.117(b),   481.118(b), or 481.121(b)(1), (1-a), or (2), or an offense under   Section 481.119(b), 481.125(a), or 483.041(a);                (2)  the actor has been previously convicted of or   placed on deferred adjudication community supervision for an   offense under this chapter or Chapter 481 or 483;                (3)  the actor was acquitted in a previous proceeding   in which the actor successfully established the defense under that   subsection or Section 481.115(g), 481.1151(c), 481.116(f),   481.1161(c), 481.117(f), 481.118(f), 481.119(c), 481.121(c),   481.125(g), or 483.041(e); or                (4)  at any time during the 18-month period preceding   the date of the commission of the instant offense, the actor   requested emergency medical assistance in response to the possible   overdose of the actor or another person.          SECTION 19.  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) or (f), 481.1121(b)(4), 481.1123(d), (e), or (f), or    481.115(f), [or 481.120(b)(6),] Health and Safety Code.          SECTION 20.  (a)  Except as otherwise provided by this   section, 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 occurred before that date.          (b)  Sections 481.120, 481.121, and 481.134, Health and   Safety Code, as amended by this Act, apply to an offense committed   under Section 481.120 or 481.121, or an offense committed under   Section 481.120 or 481.121 and punishable under Section 481.134,   before, on, or after September 1, 2023, except that a final   conviction for an offense that exists on September 1, 2023, is   unaffected by this Act.          SECTION 21.  To the extent of any conflict, this Act prevails   over another Act of the 88th Legislature, Regular Session, 2023,   relating to nonsubstantive additions to and corrections in enacted   codes.          SECTION 22.  This Act takes effect September 1, 2023.