# The Attorney General ofTexas

April 21, 1981

Honorable Charles Evans, Chairman House Committee onGovernment Organization P. 0. Box2910 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 inviolation ofthis 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 inviolation ofthis Act. (cl Aperson commits an aggravated offense ifhe commits an offense under Subsection (b) of this

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section, is 18years of age or older, and the person whoreceives or whois intended to receive the drug paraphernalia is under 18 years ofage and at least three years younger than the actor. (d) An offense under Subsection (a) of this section is a Class Cmisdemeanor. (e) An offense under Subsection (b) of this section is a Class Amisdemeanor. Ifit be shown on atrial for violation of Subsection (b) of this section, that the defendant has been before convicted of Subsection (b)or (c)ofthis 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 ofthe third degree. The bill defines “drug paraphernalia” as:

equipment, a product, or a material of any kind that isused or intended for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, or concealing acontrolled substance in violation of this Act or in injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance inviolation ofthis Act. Itincludes, but isnot limited to: (A) a kit used or intended for use in planting, propagating, cultivating, growing, or harvesting any species ofplant that isa controlled substance or from which a controlled substance can bederived; (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 acontrolled substance;

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(P) a diluent or adulterant, such as quinine hydrochloride, mannitol, mannite, dextrose, or lactose, used or intended for use in cutting acontrolled 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 incompounding acontrolled 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 acontrolled substance; (K) a hypodermic syringe, needle, or other object used or intended for use in parenterally injecting acontrolled substance into the human bo9; and (L) an object used or ,intended for use iningesting, inhaling, or otherwise introducing marijuana, cocaine, hashish, orhashish 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) awater pipe; (iii) acarburetion tube or device; (iv) a smoking orcarburetion mash 

### cd achamber pipe; (Vi) acarburetor pipe; (vii) an electric pipe; (viii) an air-driven pipe; (id achillum;

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### W abong; 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 ofevidence: (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; [noSubsection (3)appears intext ofbilli (4) the existence ofany residue ofcontrolled 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 ordepict its use; (6) the manner in which the object isdisplayed 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 alicensed distributor ordealer of tobacco products; (10) direct or circumstantial evidence of the ratio of sales ofthe object to the total sales of the business enterprise; (10 the existence and scope of legitimate uses for the object inthe community;

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(12) the physical design characteristics ofthe 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 ofdrug 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 (8

. - e of Hoffman Estates, 639F. 2d373

c. 1 o) 7th Cu. 1981);Geiger v. City ofEagan, 618F. 2d 26 th v. 98 ;Record Head Corp. v.Sachen, 498 F. Supp. 88 (E.D. Wis 1980);Music Stop, Inc. v.CityxFerndale, 488F. 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, 621F. 2d 141(5th Cir. 1980). In respome to these court decisions, the United States Department ofJustice, 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, 501F. Supp. 168(E.D. La. 1980);MidAtlantic Accessories Trade Ass’nv.State ofMaryland, 500F. 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). Inone instance, a court held a statute invalid only to the extent it departed from the Model Act. Florida C 499F. 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 SeeFlipside, 639 F. 2dat 375. 376 (brief review ofthe historv osraohernalia statutes to Janaurv 1981XInthat case, Record Revolution No.6,Inc.-v. City ofParma, 638F. 2d916(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, asamended, has been upheld inall respects bythe 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 noaction 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 733omits the deqned oruse” 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 isincluded in the definition

.‘I 638F. 2dat 928,930. There maybeno
“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 ontheir face, are not vague or overbroad. &&at 929.

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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 asdrug paraphernalia per would render the statute vague and overbroad. $&at 932. House Bill 733does not doso. It isclear 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 733omits these items from its list ofexamp= ofparaphernalia. In its section labeled “evidentiary rules,” the ModelAct lists anumber offactors to be considered in determining whether an item is drug paraphernalia, “sv?ject to current rules of evidence.” Although the court in City ofParma does not say that any of these factors is overbroad onits face, it finds problems with several ofthem. One,

“the proximity of the object, in time and space, to adirect violation ofthe 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 ofthe court’s argument, consideration ofthis factor would make the retailer responsible for media advertising over which he has no controL House Bill 733adds one factor which isnot present inthe 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 washeld 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 ofParma says this “reason to know” standard isvague 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 astandard satisfies the court’s objections inCity ofParma. 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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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 Bill733 wouldbeupheld as constitutional SUMMARY
House Bill 733isconstitutional

MAR-E WHI TE Attorney General ofTexas JOHN W.FAINTER, JR. First Assistant Attorney General RICHARD E.GRAY III Executive Assistant Attorney General Prepared byRick Gilpin Assistant Attorney General APPROVED: OPINION COMMITTEE Susan L. Garrison, Chairman Gerald C. Carruth Judge Leon Douglas Bruce Youngblood

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