The Attorney General of Texas 

April 21, 1981 

Honorable Charles Evans, Chairman 

House Committee on Government 

Organization 

P. 0. Box 2910 

Opinion No. W-326 

Re: Constitutionality of House 

Bill 733 

Austin, Texas 76769 

Dear Representative Evans: 

You have requested our opinion regarding the constitutionality of 

House Bill 733, presently pending In the 67th Legislature. The bill would 

~amend the Texas Controlled Substances Act, article 4476-15, V.T.C.S., by 

adding the following: 

Sec. 4.07. POSSESSION OR DRLIVRRY OF DRUG 

PARAPHERNALIA 

(a) A person commits an offense if he knowingly 

or intentionally uses or possesses with intent to use 

drug paraphernalia to plant, propagate, cultivate, 

grow, harvest, manufacture, compound, convert, 

produce, process, prepare, test, analyze, pack, 

repack, store, contain, or conceal a controlled substance in violation of this Act or to inject, ingest, 

inhale, or otherwise introduce into the human body a 

controlled substance in violation of this Act. 

(b) A person commits an offense if he knowingly 

or intentionally delivers, possesses with intent to 

deliver, or manufactures with intent to deliver drug 

paraphernalia knowing that the person who receives 

or who is intended to receive the drug paraphernalia 

intends that it be used to plant, propagate, cultivate, 

grow, harvest, manufacture, compound, convert, 

produce, process, prepare, test, analyze, pack, 

repack, store, contain, or conceal a controlled sub 

stance in violation of this Act or to inject, ingest, 

inhale, or otherwise introduce into the human body a 

controlled substance in violation of this Act. 

(cl A person commits an aggravated offense if he 

commits an offense under Subsection (b) of this 

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Honorable Charles Evans - Page Two (MW-326) 

section, is 18 years of age or older, and the person who receives 

or who is intended to receive the drug paraphernalia is under 18 

years of age and at least three years younger than the actor. 

(d) An offense under Subsection (a) of this section is a 

Class C misdemeanor. 

(e) An offense under Subsection (b) of this section is a 

Class A misdemeanor. If it be shown on a trial for violation of 

Subsection (b) of this section, that the defendant has been 

before convicted of Subsection (b) or (c) of this section, then an 

offense under Subsection (b) of this section is a felony of the 

third degree. 

(f) An offense under Subsection (c) of this section is a 

felony of the third degree. 

The bill defines “drug paraphernalia” as: 

equipment, a product, or a material of any kind that is used or 

intended for use in planting, propagating, cultivating, growing, 

harvesting, manufacturing, compounding, converting, producing, 

processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, or concealing a controlled substance 

in violation of this Act or in injecting, ingesting, inhaling, or 

otherwise introducing into the human body a controlled substance in violation of this Act. It includes, but is not limited to: 

(A) a kit used or intended for use in planting, propagating, 

cultivating, growing, or harvesting any species of plant that is a 

controlled substance or from which a controlled substance can 

be derived; 

(B) a kit used or intended for uss in manufacturing, 

compounding, converting, producing, processing, or preparing a 

controlled substance; 

(C) an isomerization device used or intended for use in 

increasing the potency of any species of plant that is a 

controlled substance; 

(D) testing equipment used or intended for use in identifying or in analyzing the strength, effectiveness, or purity of a 

controlled substance; 

(E) a scale or balance used or intended for use in weighing 

or measuring a controlled substance; 

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Honorable Charles Evans - Page Three W-326) 

(P) a diluent or adulterant, such as quinine hydrochloride, 

mannitol, mannite, dextrose, or lactose, used or intended for 

use in cutting a controlled substance; 

(G) a separation gin or sifter used or intended for use in 

removing twigs and seeds from or in otherwise cleaning or 

refining marijuana; 

(H) a blender, bowl, container,~ spoon, or mixing device used 

or intended for use in compounding a controlled substance; 

(I) a capsule, balloon, envelope, or other container used or 

intended for use in packaging small quantities of a controlled 

substance; 

(J) a container or other object used or intended ‘for use in 

storing or concealing a controlled substance; 

(K) a hypodermic syringe, needle, or other object used or 

intended for use in parenterally injecting a controlled substance 

into the human bo9; and 

(L) an object used or ,intended for use in ingesting, inhaling, 

or otherwise introducing marijuana, cocaine, hashish, or hashish 

oil into the human body, such as: 

(i) a metal, wooden, acrylic, glass stone, 

plastic, or ceramic pipe with or without a screen, 

permanent screen, hashish head, or punctured 

metal bowl; 

(ii) a water pipe; 

(iii) a carburetion tube or device; 

(iv) a smoking or carburetion mash 

cd a chamber pipe; 

(Vi) a carburetor pipe; 

(vii) an electric pipe; 

(viii) an air-driven pipe; 

(id a chillum; 

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Honorable Charles Evans - Page Four (Mu-326) 

W a bong; or 

(xi) an ice pipe or chiller. 

The bill ako provides the following: 

Sec. 5.15. EVIDRRTIARY RULES. In considering whether an 

item is drug paraphernalia under this Act, a court or other 

authority shall consider, in addition to all other logically 

relevant factors, and subject to current rules of evidence: 

(1) statements by an owner or by anyone in control of the 

object concerning its use; 

(2) prior convictions, if any, of an owner or of anyone in 

control of the object, under any state or federal law relating to 

controlled substances; 

[no Subsection (3) appears in text of billi 

(4) the existence of any residue of controlled substances on 

the object; 

(5) direct or circumstantial evidence of the intent of an 

owner or of anyone in control of the object to deliver it to 

persons whom he knows or should reasonably know intended to 

use the object to facilitate a violation of this Act (the 

innocence of an owner or of anyone in control of the object as 

to a direct violation of this Act does not prevent a finding that 

the object is intended for use or designed for use as drug 

paraphernalia); 

(6) instructions, oral or written, provided with the object 

concerning its use; 

(7) descriptive materials accompanying the object which 

explain or depict its use; 

(6) the manner in which the object is displayed for sale; 

(9) whether the owner or anyone in control of the object is 

a supplier of similar or related items to the community, such as 

a licensed distributor or dealer of tobacco products; 

(10) direct or circumstantial evidence of the ratio of sales 

of the object to the total sales of the business enterprise; 

(10 the existence and scope of legitimate uses for the 

object in the community; 

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Honorable Charles Evans - Page Five (MW-326) 

(12) the physical design characteristics of the item; and 

03) expert testimony concerning its use. 

Since 1978, a substantial number of state and municipalities have adopted 

statutes and ordinances prohibiting, in varying degrees, the possession and sale of drug 

paraphernalia. Many of the early attempts at such legislation were held unconstitutional bv the federal courts, urimarilv on the mounds of vagueness and overbreadth. 

y, e.6, Flipside? Hoffman E&&s, hit. v. Villag . - e of (8 Hoffman c. 1 o) Estates, 639 F. 2d 373 

7th Cu. 1981); Geiger v. City of Eagan, 618 F. 2d 26 th v. 98 ; Record Head Corp. 

v. Sachen, 498 F. Supp. 88 (E.D. Wis 1980); Music Stop, Inc. v. CityxFerndale, 488 F. 

Supp. 390 (E.D. Mich. 1980); Knoedler v. Roxbury Townshi 485 F. Supp. 990 (D.N.J. 

1980); High 01’ Times, Inc. v. Busbee, 456 F. Supp. 1035 N.D. Ga. 19781, alPd per 

curiam, 621 F. 2d 141(5th Cir. 1980). 

In respome to these court decisions, the United States Department of Justice, in 

August 1979, drafted a Model Drug Paraphernalia Act, which has been widely adopted. 

Most courts which have considered statutes or ordinances based upon the Model Act 

have upheld their validity. See, e.g., Tobacco Accessories & Novelty Craftsmen 

Merchants Ass’n of Louisiana v. Treen, 501 F. Supp. 168 (E.D. La. 1980); MidAtlantic 

Accessories Trade Ass’n v. State of Maryland, 500 F. Supp. 834 (D. Md. 1980); Delaware 

Accessories Trade Ass% v. Gebelein, 497 F. Supp. 289 (D. DeL 1980); World Imports, 

Inc. v. Woodbridge Township, 493 F. Supp. 428 (D.N.J. 1980). In one instance, a court 

held a statute invalid only to the extent it departed from the Model Act. Florida 

C 499 F. Supp. 346 (N.D. Fla.1980). 

In only one case, however, has a statute or ordinance based on the Model Act 

reached the federal appellate 1eveL See Flipside, 639 F. 2d at 

375. 376 (brief review of the historv osraohernalia statutes to Janaurv 1981X In that 

case, Record Revolution No. 6, Inc.-v. City of Parma, 638 F. 2d 916 (6th Cir. 1980), the 

court found certain portions of an ordinance based on the Model Act to be 

unconstitutional Significantly, every portion held invalid by the court has been 

removed from the present version of House Bill 733. Thus, House Bill 733, as amended, 

has been upheld in all respects by the only federal appellate court which has considered 

the matter. The municipality in the City of Parma case filed its appeal to the United 

States Supreme Court on March 3, 1981 (Docket No. 80-1507), but as of this date, the 

Supreme Court has taken no action thereon. 

The Model Act defines “drug paraphernalia” to’ include “all equipment, products 

and materials of any kind which are used, intended for use, or desi ed for use” in ~-s---f- violating the drug laws. (Emphasis added). House Bill 733 omits the deqned or use” 

aspect of the test, The court in City of Parma says that the “designed for use” 

standard sanctions transferred intent, and “gives no hint to those attempting to 

comply. . . what is included in the definition .‘I 638 F. 2d at 928,930. There may be no 

“design” characteristics of an item, the court says, that distinguish lawful from 

unlawful purposes. As a result, “defining drug paraphernalia in terms of ‘design’ is 

vague and overbroad.” rd, at 931. By contrast, the terms %se” and “intended for use,” 

at least on their face, are not vague or overbroad. && at 929. 

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Honorable Charles Evans - Page Six W-326) 

In its examples of drug paraphernalia, the Model Act lists items which may be 

considered drug paraphernalia, provided they are ako used, intended for use, or 

designed for use in violating the drug laws. The City of Parma court concludes that 

any attempt to construe the listed items as drug paraphernalia per would render the 

statute vague and overbroad. $&at 932. House Bill 733 does not do so. It is clear that 

it views the listed items as examples only. It must still be proved that a particular 

item was “used or intended for use” in violating the drug laws. The court does strike 

down two of the listed items of paraphernalia, “roach clips” and “miniature cocaine 

spoons,” on the ground of lack of precision in those terms. Id. at 932-33. Again, 

however, House Bill 733 omits these items from its list of examp= of paraphernalia. 

In its section labeled “evidentiary rules,” the Model Act lists a number of factors 

to be considered in determining whether an item is drug paraphernalia, “sv?ject to 

current rules of evidence.” Although the court in City of Parma does not say that any 

of these factors is overbroad on its face, it finds problems with several of them. One, 

“the proximity of the object, in time and space, to a direct violation of the Act or to a 

controlled substance,” sanctions guilt by association, according to the court. J& at 

933. This factor is omitted from House Bill 733. Another factor which the court 

implicity faults, and which House Bill 733 omits, is “national and local advertising 

concerning its use.” On the basis of the court’s argument, consideration of this factor 

would make the retailer responsible for media advertising over which he has no 

controL 

House Bill 733 adds one factor which is not present in the ordinance considered in 

City. of Parmy We physical design characteristics of the item.” Since the 

consideration o “design” is here inserted merely as an item of evidence, and is not 

part of the definition of drug pharaphernalia, the Sixth Circuit, as with the other 

questionable evidentiary factors considered above, would probably not declare it to be 

overbroad on its face. Because Vesign” is ambiguous, however in the context of a 

multi-use item, and since the “designed for use” standard was held invalid by the court 

in considering the definition of Vrug paraphernalia,” it is our opinion that House Bill 

733 would be improved if this factor were removed from the list of evidentiary 

factors 

The Model Act makes unlawful the delivery, sale or possession with intent to 

deliver or sell drug paraphernalia, “knowing, or under circumstances where one 

reasonably should know, ” that it will be used to violate the drug laws. The court in 

City of Parma says this “reason to know” standard is vague and overbroad, because it is 

“too open-ended and too susceptible to misapplication to satisfy the dictates of due 

plWX!SS.” Id. at 935-36. House Bill 733 omits “reason to know,” requiring instead a 

standard oFknowing that the person who receives or who is intended to receive the 

drug paraphernalia” intends to use it~~to violate the drug laws. Clearly, such a standard 

satisfies the court’s objections in City of Parma. 

The Model Act creates an offense of placing in any publication any advertisement, “knowing or under circumstances where one reasonably should know, that the 

purpose of the advertising, in whole or in part, is to promote the sale of objects 

designed or intended for use as drug paraphernalia.” The City of Parma court holck 

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Honorable Charles Evans - Page Seven (MW-326) 

that this provision violates “the First Amendment right of free speech.” !&. at 937. 

Again, however, House Bill 733 is not affected, because it does not create an offense 

for the advertising of drug paraphernalia. 

It is clear that the drafters of House Bill 733 have paid careful attention to the 

court’s decision in City of Parma and have amended their bill so as to remove the 

court’s objections. It appears that House Bill 733 would satisfy the constitutional 

standards of the Texas and federal courts, We conclude, therefore, that with the 

exception noted, House Bill 733 would be upheld as constitutional 

SUMMARY 

House Bill 733 is constitutional 

M A R-E W HI T E 

Attorney General of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

RICHARD E.GRAY III 

Executive Assistant Attorney General 

Prepared by Rick Gilpin 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Susan L. Garrison, Chairman 

Gerald C. Carruth 

Judge Leon Douglas 

Bruce Youngblood 

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