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Since we reported on this bill in its original chamber, it has been modified to reflect similar language in SB 1582. We continue to support HB 1212. The first and second chamber analyses are below.
First chamber bill analysis:
The bill would authorize the commissioner of the Department of State Health Services (DSHS) to designate a consumer commodity as an abusable synthetic substance if the commissioner determines the commodity poses a threat to public health according to certain criteria.
The manufacture, distribution, and retail sale of abusable synthetic substances would be sanctioned under Section 431.059 of the Health and Safety Code, which provides that a first offense is a Class A misdemeanor, and a second offense is a state jail felony. Persons who abuse the substances would be sanctioned under Section 481.119 of the Health and Safety Code, which provides that an offense is a Class A or B misdemeanor, depending upon the circumstances.
The bill would also authorize the DSHS commissioner to emergency schedule a substance as a controlled substance if the commissioner determines the action is necessary to avoid an imminent hazard to the public safety considering specific criteria, the substance is not already scheduled, and no exemption or approval is in effect for the substance under Section 505 of the Federal Food, Drug, and Cosmetic Act.
The legislation would establish a defense to prosecution for the Class B misdemeanor offense involving a person who knowingly or intentionally possesses a controlled substance listed in a schedule under the Texas Controlled Substances Act but not listed in a penalty group if the actor requested emergency medical assistance in response to the possible controlled substance overdose of the actor or another person. The bill removes from the affirmative defense to the prosecution of an offense involving the manufacture, delivery, or possession of a controlled substance analogue the condition that the analogue was not in any part intended for human consumption.
Second chamber bill analysis:
The bill would amend the Health and Safety Code by authorizing the Commissioner of Health at the Department of State Health Services (DSHS) to determine an imminent hazard to the public safety exists if the commissioner makes findings that a substance poses a danger to health and safety. The commissioner would be allowed to base his or her determination on:
When the commissioner modifies the list of controlled substances under Schedule I, the bill would establish a procedure for designating certain controlled substances as hazardous controlled substances. The qualifications, by which the commissioner would be able to place a controlled substance as Schedule I, include that the drug is chemically similar in structure or effect to a controlled substance or poses an immediate danger to life or health, and receives approval of placement on the schedule by the governor, lieutenant governor, and attorney general. The designation of a controlled substance as a hazardous controlled substance would expire on September 1 of each odd-numbered year for any designation in effect before January 1 of that year.
The bill would create varying offenses, including a Class A misdemeanor, Class B misdemeanor, state jail felony, felony of the third degree, and a felony of the second degree, for a person who knowingly manufactures, delivers, or possesses a designated hazardous controlled substance. The offense would depend on the aggregate weight of the designated hazardous controlled substance.
The second chamber sponsor is Senator Schwertner.
The second chamber sponsor is Senator Schwertner.
There has been a significant increase in recent years in the production, development, and sale of synthetic drugs. Synthetic drugs are man-made substances that mimic the effects of traditional, illicit drugs. The products are often marketed as harmless fragrances and legally sold in convenience stores and online under the guise of incense or potpourri. However, these drugs can be as dangerous as many illicit drugs with the same potency to cause adverse life-altering or lethal consequences.
Efforts to ban these substances have resulted in little success because manufacturers frequently change a synthetic substance's molecular formula. Changing the molecular structure allows manufacturers to exploit a loophole and avoid the responsibility associated with the legal jeopardy of the illegal drugs they are replacing. The purpose of this legislation is to close that loophole by authorizing DSHS to designate and regulate abusable synthetic substances at all times, not just through legislation passed during a legislative session.
We support HB 1212 because it fits within our view of a legitimate role of government and promotes personal responsibility. Implementing improved measures to curb manufacturers' ability to skirt the law would also potentially alleviate pressure on court systems and help reduce the prison population.