Fumbling the War on Drugs: The Unintentional Decriminalization of Drug Crimes.
It’s no secret, legislatures had successfully reigned down on drug crimes. Penalty groups were expanded, punishments were enhanced, and sentences were lengthened. Capitol Hill in Austin acquired all the firepower needed to defeat Texas’ war on drugs.
Then along came a new and serious threat to the peace and dignity of the State. This threat was dangerous. It was underpunished. It was playing for the other team. It was synthetic drugs.
To stiffen punishment on these designer psychedelics (not listed in the Texas Controlled Substance Act) the lawmakers pushed a new subsection (d) to the Texas Health & Safety Code Section 481.103. The updated playbook would exclude some Federal Drug Administration (FDA) approved substances from Penalty Group 2 (PG2) (one of four primary drug penalty groups). The synthetic drugs would finally be penalized as felonies rather than misdemeanors. High-fives were exchanged as the bill rolled through the Senate, the House, and on to the Governor’s desk.
Game Over. So it was thought.
As the bill went to print, the plain language of the statute excluded all FDA approved substances from PG2. Amphetamine, lisexamfetamine, and dronabinol were a few of the substances listed in both Section 481.103 and the FDA, exempting drugs containing any quantity of those substances from felony prosecution. A hole, big enough for any criminal defense attorney to run through, opened. Prescription drugs like Adderall, Adderall RX, and Vyvanse contain amphetamines and lisexamfetamines. Street drugs like ecstasy, PCP, and speed have been known to contain amphetamines. Marijuana capsules and oils house dronabinol or delta-9-terahydrocannabinol (THC). Substances once playing under the bright lights of felony stadiums were demoted to outdated, empty misdemeanor fields, if at all. Prosecutors will argue Texas Health & Safety Code Section 481.119 applies, making it a misdemeanor offense to possess, manufacturer or deliver a miscellaneous substance not listed in a penalty group. Defense attorneys will argue, the substances are listed and specifically exempted. For now, it will be up to the courts to sort it out. For now, the pigskin is loose on crimnal courtroom floors across Texas.