ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

May 5, 2008

The Honorable Jeff Wentworth

Chair, Jurisprudence Committee

Texas State Senate

Post Office Box 12068

Austin, Texas 78711-2068

Dear Senator Wentworth:

You ask:

Opinion No. GA-0622

Re: Whether persons operating or participating in

a pilot needle- and syringe-exchange program

authorized for Bexar County by Government Code

section 531.0972 may be prosecuted for possessing

drug paraphernalia under Health and Safety Code

section 481.125 (RQ-0630-GA)

whether the public health and Medicaid evaluation pilot program

authorized by law under Section 531.0972 ofthe Government Code,

effective September 1, 2007, ... now enables participants ofthe pilot

program . . . to carry out the mission of the program and the

Legislature's intent ofpreventing the spread ofHIV, hepatitis Band

C, and other infectious and communicable diseases, without

subjecting these persons to criminal prosecution or the threat of

criminal prosecution in Texas under the Controlled Substances Act

ofthe Health and Safety Code. 1

See TEX. GOV'T CODE ANN. § 531.0972 (Vernon Supp. 2007); TEX. HEALTH & SAFETY CODE ANN.

§ 481.125 (Vernon 2003). You ask specifically whether persons participating in the Bexar County

pilot program-"those associated with its operations and those whom it would serve"-may be

prosecuted for possessing drug paraphernalia underthe Texas Controlled Substances Act, Health and

Safety Code section 481.125. Request Letter, supra note 1, at 1; see ide at 1-2.

Government Code section 531.0972 was adopted in 2007 as part ofSenate Bill 10, to which

you refer as the "Omnibus Medicaid Bill." See Act ofMay 27, 2007, 80th Leg., R.S., ch. 268, § 5,

2007 Tex. Gen. Laws 500, 504; Request Letter, supra note 1, at 1. Section 531.0972 expressly

1See Letter from Honorable JeffWentworth, Chair, Jurisprudence Committee, Texas State Senate, to Honorable

Greg Abbott, Attorney General of Texas, at 1-2 (Sept. 26,2007) (on file with the Opinion Committee, also available

at http://www.oag.state.tx.us) [hereinafter Request Letter].
The Honorable Jeff Wentworth - Page 2 (GA-0622)

permits the Texas Health and Human Services Commission (the "Commission") to guide Bexar

County's local health authority2 in establishing a disease-prevention pilot program-which may

include a needle- and syringe-exchange program:

The commission may provide guidance to the local health

authority ofBexar County in establishing a pilot program funded by

the county to prevent the spread ofHIV, hepatitis B, hepatitis C, and

other infectious and communicable diseases. The program may

include a disease control program that provides for the anonymous

exchange of used hypodermic needles and syringes.

TEX. GOV'T CODE ANN. § 531.0972 (Vernon Supp. 2007) (emphasis added); see also ide

§ 531.001(2) (Vernon 2004) (defining "commission").

You question whether, should Bexar County elect to include such a needle- and syringeexchange program as a component ofits disease-prevention pilot program, those distributing as well

as those accepting and using the needles and syringes may be prosecuted under the Texas Controlled

Substances Act. See Request Letter, supra note 1, at 1-2; TEX. HEALTH & SAFETY CODE ANN.

§ 481.001 (Vernon 2003) (titled Texas Controlled Substances Act); see also TEX. HEALTH& SAFETY

CODE ANN. § 481.002(5) (Vernon Supp. 2007) (defining "controlled substance"). Under the Texas

Controlled Substances Act, the possession or delivery of drug paraphernalia, which includes "a

hypodermic syringe, needle, or other object used or intended for use in parenterally injecting a

controlled substance into the human body," is a criminal offense:

(a) A person commits an offense ifthe person knowingly or

intentionally uses or possesses _with intent to use drug paraphernalia

... to inject ... into the human body a controlled substance in

violation ofthis chapter.

(b) A person commits an offense ifthe person 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 inject ... into the human

body a controlled substance in violation ofthis chapter.

(c) A person commits an offense ifthe person commits an

offense under Subsection (b), is 18 years of age or older, and the

person who receives or who is intended to receive the drug

paraphernalia is younger than 18 years of age and at least three years

younger than the actor.

2Throughout this opinion, we refer to Bexar County's local health authority simply as Bexar County.
The Honorable Jeff Wentworth - Page 3 (GA-0622)

(d) An offense under Subsection (a) IS a Class C

misdemeanor.

(e) An offense under Subsection (b) is a Class A

misdemeanor, unless it is shown on the trial of a defendant that the

defendant has previously been convicted under Subsection (b) or (c),

in which event the offense is punishable by confinement in jail for a

term of not more than one year or less than 90 days.

(f) An offense under Subsection (c) is a state jail felony.

TEX. HEALTH & SAFETY CODEANN. § 481.125 (Vernon 2003); ide § 481.002(17)(K) (Vernon Supp.

2007) (defining "drug paraphernalia" to include a hypodermic needle); see also ide §481.002(8), (38)

(defining "deliver" and "possession").

You suggest that Government Code section 531.0972 on its face clearly and unambiguously

creates an exception to the Texas Controlled Substances Act such that individuals participating in

a Bexar County program may not be subject to prosecution under section 481.125. See Request

Letter, supra note 1, at 6. In the alternative, you suggest that, to the extent Government Code section

531.0972 is ambiguous on its face, the legislative intent behind the section requires us to construe

it to create an exception to the Texas Controlled Substances Act. See id.; see also TEX. GOV'T CODE

ANN. § 311.023(3) (Vernon 2005) (authorizing a court to consider a statute's legislative history

"whether or not the statute is considered ambiguous on its face"). As an additional alternative, you

suggest that, to the extent Government Code section 531.0972 and the Texas Controlled Substances

Act are inconsistent, section 531.0972 creates a specific exception to the more general Texas

Controlled Substances Act. See Request Letter, supra note 1, at 6; see also TEX. GOV'T CODE ANN.

§ 311.026(b) (Vernon 2005) (directing that where a general provision and a special or local provision

conflict irreconcilably, "the special or local provision prevails as an exception to the general

provision, unless the general provision is the later enactment and the manifest intent is that the

general provision prevail").

First, we address your argumentthat Government Code section 531.0972 isinconsistent with

the Texas Controlled Substances Act. See Request Letter, supra note 1, at 6. We do not agree that

the provisions are inconsistent. On its face, the disease-prevention pilot program merely allows-it

does notrequire-Bexar County to implement a needle- and syringe-exchange program. The County

may, possibly assisted by advice from the Commission, implement a program to prevent the spread

of certain infectious and communicable diseases. TEX. GOV'T CODE ANN. § 531.0972 (Vernon

Supp.2007). That program may, in tum, include a needle- and syringe-exchange program. Id. Or

it may not. See ide ·The word "may" denotes discretion not to do something. Id. § 311.016(1)

(Vernon 2005) (stating that the word "'[m]ay' creates discretionary authority or grants permission

or a power"). Because the pilot program statute merely allows a pilot component that includes a

needle- and syringe-exchange program, it is not-on its face-inconsistent with the Texas

Controlled Substances Act.
The Honorable IeffWentworth - Page 4 (GA-0622)

Similarly, because the statutes at issue are not inconsistent, we cannot agree that the mere

allowance ofa needle- and syringe-exchange program as part 6fthe disease-prevention pilot program

makes section 531.0972 a "clear and unambiguous" exception to Health and Safety Code section

481.125 such that individuals participating in a Bexar County program may not be subject to

prosecution under the Texas Controlled Substances Act. See Request Letter, supra note 1,at 6.

While Government Code section 531.0972 allows the establishment in Bexar County of a needleand syringe-exchange program as part of a pilot program to prevent the spread of certain infectious

or communicable diseases, nothing in Government Code chapter 531 or in the Texas Controlled

Substances Act expressly exceptsfrom prosecution underthe Texas Controlled Substances Actthose

participating in a needle- and syringe-exchange program established under GovernmentCode section

531.0972. See generally TEX. GOV'T CODE ANN. §§ 531.001-.604 (Vernon 2004 & Supp. 2007)

(providing for the Health and Human Services Commission); TEX. HEALTH & SAFETY CODE ANN.

§§ 481.001-.314 (Vernon 2003 & Supp. 2007) ("Texas Controlled Substances Act"). In other

words, neither code provision addresses the other in any fashion.

Finally, we mustreject the propositionthat GovernmentCode section 531.0972 is ambiguous

on its face. Rather, on its face, the provision simply permits the Commission to guide Bexar

County's local health authority in establishing a pilot program-which may include a needle- and

syringe-exchange component-to prevent the spread of certain diseases. TEX. GOV'T CODE ANN.

§ 531.0972 (Vernon Supp. 2007).

Both Government Code section 531.0972 and the Texas Controlled Substances Act are clear

and not in conflict or inconsistent. Only ifBexar County elects to include a needle- and syringeexchange program as part of its disease prevention pilot program is there any potential conflict

between these provisions. In that event, we are faced with two possible constructions of section

531.0972: One interpretation isto conclude that, because the Legislature did not except participants

in the needle and syringe component ofthe program from the possibility ofprosecution undersection

481.125, they are subject to the possibility ofsuch prosecution. The alternative is to conclude that,

because the Legislature should not be presumed to have authorized the establishment of a portion

of a disease-prevention program that is effectively illegal under the Texas Controlled Substances

Act, section 531.0972 creates a special exception from the possibility ofprosecution that applies to

individuals participating in the pilot program. To interpret the statute, we apply established rules of

statutory construction.

In construing a statute, a court seeksto ascertain and effectuate the Legislature's intent. City

ofSan Antonio v. City ofBoerne, 111 S.W.3d 22, 25 (Tex. 2003); State ex reI. State Dep't of

Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002) (citing TEX. GOV'T CODE

ANN. § 312.005 (Vernon 1998)). A court looks first to the plain meaning of a statute's words. Bd.

ofAdjustment v. Wende, 92 S.W.3d 424,430 (Tex. 2002); see also Fleming Foods ofTex. , Inc. v.

Rylander, 6 S.W.3d 278, 284 (Tex. 1999) (stating that statutes should not be construed to mean

something other than what their plain words say unless there is an obvious error such as a

typographical one or if construing a statute according to its plain meaning would lead to an absurd

result); State v. Cowsert, 207 S.W.3d 347, 350 (Tex. Crim. App. 2006) (stating that a court focuses

attention on a statute's literal text and tries to discern the fair, objective meaning ofthat text at the
The Honorable Jeff Wentworth - Page 5 (GA-0622)

time ofits enactment) (citing Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991)). More

significantly here, a court must presume that the Legislature adopted an enact~ent"with complete

knowledge ofthe existing law and with reference to it." Acker v. Tex. Water Comm 'n, 790 S.W.2d

299,301 (Tex. 1990) (citing McBride v. Clayton, 166 S.W.2d 125, 128 (Tex. 1942)). And a court

must presume that the Legislature chose every word of a statute for a purpose and excluded every

word that has been excluded for a purpose. Laidlaw Waste Sys. (Dallas), Inc. v. City ofWilmer, 904

S.W.2d 656, 659 (Tex. 1995) (quoting Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540

(Tex. 1981)).

Given that we must presume thatthe Legislature adopted Government Code section 531.0972

with complete knowledge ofthe existence ofthe Texas Controlled Substances Act, we must presume

that it was aware ofthe possibility ofcriminal prosecution for participants in a needle- and syringeexchange program. Yet the Legislature did not provide any language excepting participants inBexar

County's needle- and syringe-exchange program" from criminal prosecution under the Texas

Controlled Substances Act or any other Texas statute. We understand your argument that the

Legislature intended to create such an exception. Nevertheless, nothing in the plain language of

section 531.0972 establishes that exception. See generally TEX. GOV'T CODE ANN. § 531.0972

(Vernon Supp. 2007) (establishing pilot program). Nothing in the plain language of the Texas

Controlled Substances Act does so either. See generally TEX. HEALTH & SAFETY CODE ANN.

§§481.001-.314 (Vernon 2003 & Supp. 2007) ("Texas Controlled Substances Act"). It is not within

this office's normal province "to indulge in acts of legislation." Canal Ins. Co. v. Hopkins, 238

S.W.3d 549, 562 (Tex. App.-Tyler 2007, pet. denied) ("it is not within the judicial province to

indulge in acts oflegislation"); cf Sanchez v. State, 182 S.W.3d 34, 41 (Tex. App.-San Antonio

2005) (stating that a court cannot assume the legislative prerogative by rewriting a statute), aff'd, 209

S.W.3d 117 (Tex. Crim. App. 2006). Instead, we must take the statutes as we find them and allow

the Legislature, ifit wishes, to remedy any alleged defects. Cf Canal Ins. Co., 238 S.W.3d at 562

(stating that it is not for the courts to remedy defects or supply deficiencies in laws).

Moreover, we find several instancesin which the Legislature has adopted express exceptions

to the Texas Controlled Substances Act. For example, the Legislature has expressly stated that"[t]he

provisions of [the Texas Controlled Substances Act] relating to the possession and distribution of

peyote do not apply to the use ofpeyote by a member ofthe Native American Church in bona fide

religious ceremonies ofthe church." TEX. HEALTH & SAFETY CODE ANN. § 481.111(a) (Vernon

2003). Similarly, the Legislature has expressly excepted from specified provisions ofthe Texas

Controlled Substances Act a person who· "possesses or delivers ... drug paraphernalia to be used

to introduce tetrahydrocannabinols or their derivatives into the human body, for use in a federally

approved therapeutic research program." Id. § 481.111 (c). And section 481.062 lists a number of

persons who may possess a controlled substance without violating the Texas Controlled Substances

Act, including an agent of a registered manufacturer, distributor, or dispenser of the controlled

substance "acting in the usual course ofbusiness or employment"; "the ultimate user or a person in

possession ofthe controlled substance under" a lawful physician's order; and a law-enforcement

officer who is lawfully engaged in enforcing controlled-substance laws. Id. § 481.062(a)(I), (3), (4);

see also ide § 481.033 (excluding certain substances from the application ofthe Texas Controlled

Substances Act); ide § 481.062(a)(2), (5), (b) (exempting other specific persons from the Texas
The Honorable Jeff Wentworth - Page 6 (GA-0622)

Controlled Substances Act and authorizing the director ofthe Texas Department of Public Safety

to, by rule, waive registration requirements in certain circumstances); id § 481.0621(a) (excepting

from subchapter C ofthe Texas Controlled Substances Act "an educational or research program of

a school district or a public or private institution ofhigher education"); ide § 481.065 (exempting the

use of controlled substances used in medical research that is authorized by the Commissioner); ide

§§ 481.071, .072 (regarding the dispensation of controlled substances for valid medical purposes);

ide §§ 481.077(b), .124(f) (Vernon Supp. 2007) (allowing the director ofthe Texas Department of

Public Safety to exempt chemical precursors from the requirements ofthese sections ifthe director

determines that the precursors would not be dangerous or used in the illicit manufacture ofdrugs);

ide § 481.111 (b), (d) (Vernon 2003) (exempting from specified provisions ofthe Texas Controlled

Substances Act the possession ofdenatured sodium pentobarbital by personnel ofa humane society

or an animal control agency and the use of anabolic steroids administered to livestock or poultry);

cf ide §§ 481.122(b) (Vernon 2003), .123(a) (Vernon Supp. 2007) (creating affirmative defenses to

prosecution for a violation ofthe Texas Controlled Substances Act in certain circumstances). The

presence of these express exceptions to the Texas Controlled Substances Act indicates that the

Legislature knows how to create such an exception when it wishes to do so. It did not, however,

choose to create an exception here. See Office ofAtty Gen. v. Lee, 92 S.W.3d 526, 529 (Tex. 2002)

("every word excluded from a statute must ... be presumed to have been excluded for a purpose")

(quoting Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex. 1981)); see also Cameron,

618 S.W.2d at 540 (stating that ifthe Legislature intended for a particular statute to impose certain

restrictions, the Legislature could have done so; the fact that the Legislature did not do so suggests

that it intended not to do so).

In enacting section 531.0972, the Legislature allowedthe implementation of a pilot diseaseprevention program that, in tum, allows Bexar County to be advised by the Commission and allows

BexarCounty to create a needle- and syringe-exchange program as part ofits disease prevention pilot

program. In contrast to other statutory provisions excepting certain possession and distribution of

controlled substances from prosecution under the Texas Controlled Substances Act, the Legislature

remained silent as to any such exception under Bexar County's pilot program. In light ofthe express

exceptions to the Texas Controlled Substances Act and the fact that the disease prevention pilot

program may be implemented without including a needle- and syringe-exchange program, we do not

construe the Legislature's silence as intent to except the needle- and syringe-exchange component,

if any, from prosecution.

Additionally, while you suggest that an exception from prosecution under the Texas

Controlled Substances Act is required to give effect to the language ofsection 531.0972 allowing

a needle- and syringe-exchange program as part ofa disease-prevention program, such an exception

is not required in order to allow the needle- and syringe-exchange component to proceed. First, the

lack of an express exception from criminal prosecution does not foreclose the Commission's

authority to provide guidance to Bexar County in the establishment of a needle- and syringeexchange component as part ofits disease-prevention pilot program. Second, assuming that after

such guidance Bexar County includes the exchange program as part of its disease prevention

program, the possibility remainsthat prosecutorial discretion may be exercised in evaluating the facts

and evidence of possession of drug paraphernalia to determine whether a criminal violation ofthe
The Honorable Jeff Wentworth - Page 7 (GA-0622)

Texas Controlled Substances Act has occurred. See Hardwick v. Doolittle, 558 F.2d 292, 301 (5th

eire 1977) (recognizing "a broad ambit to prosecutorial discretion"); United States v. Cox, 342 F.2d

167, 171 (5th Cir. 1965) (indicating that a prosecutor has discretion to determine "whether a

prosecution shall be commenced or maintained" and that courts are not to interfere with a

prosecutor's free exercise of discretion); see also TEX. CODE CRIM. PROC. ANN. art. 2.01 (Vernon

2005) ("It shall be the primary duty of all prosecuting attorneys, including any special prosecutors,

not to convict, but to see that justice is done."). Third, participants who reasonably believe their

conduct is "required or authorized to assist a public servant in the performance ofhis official duty"

may raise that justification in any prosecution brought against them. TEX. PENAL CODE ANN.

§ 9.21(a), (d)(2) (Vernon 2003).

It also should be noted that even if Government Code section 531.0972 were construed as

an exception to prosecution under the Texas Controlled Substances Act, participantsin a needle- and

syringe-exchange program could possibly be subject to prosecution under other laws. By way of

example only, if an adult participant in such an exchange program conspires to dispense a needle or

syringe to a minor who is at least three years younger than the adult, the adult may be prosecuted

for criminal conspiracy. See ide § 15.02 (stating that a person criminally conspires ifwith intent to

commit a felony he agrees to commit a felony and performs an overt act in pursuance of the

agreement); see also TEX. HEALTH & SAFETY CODE ANN. § 481.125(c) (stating that an adult

commits a felony who dispenses drug paraphernalia to a person under 18 and at least three years

younger than tlte adult). Further, under the Federal Controlled Substances Act, it is illegal to sell,

transport, import, or export drug paraphernalia. 21 U.S.C. § 863(a) (2000); see also ide § 863(d)

(defining "drug paraphernalia" as equipment of any kind designed or intended to be used for

injecting controlled substances into the human body). Iftwo or more participants in a needle- and

syringe-exchange program distribute drug paraphernalia, their actions may constitute federal criminal

conspiracy. See 18 U.S.C. § 371 (2000). If a participant in the exchange attempted or conspired to

distribute drug paraphernalia, his actions may also constitute a crime under the Federal Controlled

Substances Act. See 21 U.S.C. § 846 (2000).

We thus conclude that neither Government Code section 531.0972 nor the Texas Controlled

Substances Act exceptsfrom prosecution persons who possess drug paraphernaliawhile participating

in a pilot needle- and syringe-exchange program authorized for Bexar County. Participants in the

program may, in the discretion of the prosecutor, be prosecuted under the Texas Controlled

Substances Act.
The Honorable Jeff Wentworth - Page 8 (GA-0622)

SUMMARY

In May of2007, the Legislature authorized a pilot program in

Bexar County "to prevent the spread ofHIV, hepatitis B, hepatitis C,

and otherinfectious and communicable diseases." TEX. GOV'T CODE

ANN. § 531.0972 (Vernon Supp. 2007). The legislation provided that

the Health and Human Services Commission"may provide guidance"

to Bexar County in establishing such a program. Id. (emphasis

added). The statute also allowedBexar County to include in its pilot

program a needle- and syringe-exchange program. See ide

The Texas Controlled Substances Act provides that

possession or delivery of drug paraphernalia-including "a

hypodermic syringe, needle, or other object used or intended for use

in parenterally injecting a controlled substance into the human

body"-is an offense that subjects a person to criminal prosecution.

TEX. HEALTH & SAFETY CODE ANN. § 481.002(17)(K) (Vernon

Supp.2007).

Because a needle and syringe exchange is an optional

component ofBexar County's pilot disease-prevention program, the

programneed not include a needle- and syringe-exchange component.

IfBexar County's pilot disease-prevention program does not include

a needle and syringe exchange, a person would not be subject to

prosecution under section 481.125 ofthe Health & Safety Code for

participating in the program. If, however, Bexar County elects to

include such a needle- and syringe-exchange program as part ofthis

overall disease-prevention program, the participants in that program

appear to be subject to prosecution under the Texas Controlled

Substances Act because the Legislature did not except them from

such prosecution.

In contrast to the Bexar County pilot-program statute, the

Legislature has, in numerous statutes, adopted express language that

excludes certain activities from criminal prosecution underthe Texas

Controlled Substances Act. Because the Legislature has expressly

demonstrated its ability and willingnessto exclude otherwise criminal

acts from prosecution under the Texas Controlled Substances

Act-but did not do so here-this office can neither assume nor

legislate such an intent.

Additionally, even if the participants are not subject to

prosecution under the Texas Controlled Substances Act, participants

may face criminal charges under other Texas or federal statutes.
The Honorable Jeff Wentworth - Page 9 (GA-0622)

Finally, any decision to prosecute program participants is a

matter of prosecutorial discretion.

KENT C. SULLIVAN

First Assistant Attorney General

ANDREW WEBER

Deputy Attorney General for Legal Counsel

NANCY S. FULLER

Chair, Opinion Committee

Kymberly K. Oltrogge

Assistant Attorney General, Opinion Committee