ATTORNEY GENERAL OF TEXAS GREG ABBOTT



### May 5, 2008

The Honorable JeffWentworth 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 CODEANN. § 531.0972 (Vernon Supp. 2007); TEX. HEALTH& 

### SAFETYCODEANN. § 481.125 (Vernon 2003). You ask specifically whetherpersons participating in the Bexar County pilot program-"those associated with its operations and those whom it would serve"-may be prosecutedforpossessing drugparaphernaliaunderthe Texas Controlled Substances Act, Healthand 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

1SeeLetterfrom Honorable JeffWentworth, Chair, Jurisprudence Committee, Texas State Senate, to Honorable Greg Abbott, Attorney General ofTexas, 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 JeffWentworth

- 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 ofused 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 componentofits disease-preventionpilotprogram, those distributing as well
as those accepting and using the needles and syringes maybeprosecutedunderthe Texas Controlled Substances Act. 

### See Request Letter, 

### supra note 1, at 1-2; TEX. HEALTH & SAFETY CODE ANN. § 481.00 1 (Vernon2003) (titledTexas Controlled Substances Act); 

### see also TEX. HEALTH& SAFETY CODEANN. 

### § 481.002(5) (Vernon Supp. 2007) (defining "controlled substance"). Underthe 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 ofage 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 JeffWentworth

- 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 ofa defendant that the defendant has previously been convicted under Subsection (b) or (c), in which event the offense is punishable by confinement injail for a term ofnot more than one year or less than 90 days.
(f) An offense under Subsection (c) is a statejail felony.

TEX. HEALTH& SAFETYCODEANN. 

### § 481.125 (Vernon 2003); 

### ide § 481.002(17)(K) (Vernon Supp. 2007) (defining "drugparaphernalia" to include ahypodermic needle); see also 

### ide §481.002(8), (38) (defining "deliver" and "possession").

You suggestthat 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. Inthe alternative, you suggestthat, to the extentGovernmentCode section 531.0972 is ambiguous on its face, the legislative intent behind the section requires us to construe itto create an exceptionto the Texas Controlled Substances Act. See 

### id.; see also TEX. GOV'TCODE 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 suggestthat, 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 CODEANN. § 311.026(b) (Vernon2005) (directingthatwhere a generalprovision and a special orlocal 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 yourargumentthatGovernmentCode section 531.0972 is inconsistentwith 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 pilotprogrammerely allows-it does notrequire-BexarCountyto implementaneedle- and syringe-exchangeprogram. The County may, possibly assisted by advice from the Commission, implement a program to preventthe 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 ofaneedle- and syringe-exchangeprogramas part6f the disease-preventionpilotprogram 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 ofa needleand syringe-exchange program as part ofa pilotprogram to preventthe spread ofcertain infectious
or communicable diseases, nothing in Government Code chapter 531 or in the Texas Controlled SubstancesActexpresslyexcepts fromprosecutionunderthe Texas Controlled Substances Actthose participating inaneedle- and syringe-exchangeprogramestablishedunderGovernmentCode 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 CODEANN. §§ 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 mustrejectthepropositionthatGovernmentCode 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 ofcertain diseases. TEX. GOV'T CODE ANN. 

### § 531.0972 (Vernon Supp. 2007).

BothGovernment Code section 531.0972 andthe Texas Controlled Substances Actare clear and not in conflict or inconsistent. Only ifBexar County elects to include a needle- and syringeexchange program as part ofits disease prevention pilot program is there any potential conflict between these provisions. In that event, we are faced with two possible constructions ofsection 531.0972: One interpretationis to concludethat, becausethe Legislature did not exceptparticipants inthe needle and syringe componentof theprogramfromthepossibilityof prosecutionunder section 481.125, they are subjectto the possibility ofsuch prosecution. The alternative is to conclude that, because the Legislature should not be presumed to have authorized the establishment ofa portion ofa disease-prevention program that is effectively illegal under the Texas Controlled Substances Act, section 531.0972 creates a special exception from the possibility ofprosecutionthat applies to individuals participating in the pilotprogram. To interpretthe statute, we apply establishedrules of statutory construction.

In construing a statute, a court seeks to ascertain and effectuate the Legislature's intent. 

### City of San Antonio 

### v. City of Boerne, 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 ofa statute's words. 

### Bd. of Adjustment v. 

### Wende, 92 S.W.3d 424,430 (Tex. 2002); 

### see also Fleming Foods of Tex. , 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 ifconstruing 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 theThe Honorable JeffWentworth

- 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 ofa statute for a purpose and excluded every word thathas been excluded for apurpose. 

### Laidlaw Waste Sys. (Dallas), Inc. 

### v. City of Wilmer, 904 S.W.2d 656, 659 (Tex. 1995) (quoting 

### Cameron 

### v. Terrell & 

### Garrett, Inc., 618 S.W.2d 535, 540 (Tex. 1981)).

Giventhatwemustpresumethatthe Legislature adopted GovernmentCode section 531.0972 withcompleteknowledge of the existence of the Texas Controlled Substances Act, wemustpresume that it was aware ofthe possibility ofcriminal prosecution for participants in a needle- and syringeexchangeprogram. Yetthe Legislature didnotprovide any language exceptingparticipants 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 ofthe Texas Controlled Substances Act does so either. 

### See generally TEX. HEALTH & SAFETY CODE ANN. §

### § 481.00 1-.314 (Vernon2003 & Supp. 2007) ("Texas Controlled Substances Act"). Itis notwithin this office's normal province "to indulge in acts oflegislation." 

### 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"); 

### cfSanchez 

### v. State, 182 S.W.3d 34, 41 (Tex. App.-San Antonio 2005) (statingthata courtcannotassume the legislativeprerogativebyrewriting 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 instances inwhichthe Legislature

### has adoptedexpress exceptions to the Texas Controlled Substances Act. Forexample, the Legislaturehas expressly statedthat"[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 withoutviolating the Texas Controlled Substances Act, including an agent of a registered manufacturer, distributor, or dispenser ofthe 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 officerwho is lawfully engagedinenforcing 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 TexasThe Honorable JeffWentworth

- Page 6 (GA-0622)

Controlled Substances Act and authorizing the director ofthe Texas Department ofPublic 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 apublic orprivate institution ofhigher education"); ide § 481.065 (exempting the
use ofcontrolled substances used in medical research that is authorized by the Commissioner); ide §§ 481.071, .072 (regarding the dispensation ofcontrolled 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 Actthe possession ofdenatured sodiumpentobarbital by personnel ofa humane society
or an animal control agency and the use ofanabolic 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 ofthese 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 of Atty 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 ofa pilot diseaseprevention program that, in tum, allows Bexar County to be advised by the Commission and allows BexarCountyto create aneedle- and syringe-exchangeprogramas partofits diseasepreventionpilot program. In contrast to other statutory provisions excepting certain possession and distribution of controlled substances from prosecutionunderthe Texas Controlled Substances Act, the Legislature remained silent as to any such exceptionunderBexarCounty's pilotprogram. In light ofthe express exceptions to the Texas Controlled Substances Act and the fact that the disease prevention pilot programmaybe implementedwithoutincluding aneedle- and syringe-exchangeprogram, we do not construe the Legislature's silence as intent to except the needle- and syringe-exchange component, ifany, 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-preventionprogram, such an exception is not required in orderto allow the needle- and syringe-exchange componentto 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, thepossibilityremains thatprosecutorial discretionmaybe exercisedinevaluatingthe facts and evidence ofpossession ofdrug paraphernalia to determine whether a criminal violation oftheThe Honorable JeffWentworth

- Page 7 (GA-0622)

Texas Controlled Substances Act has occurred. 

### See Hardwick

### v. Doolittle, 558 F.2d 292, 301 (5th eire 1977) (recognizing "abroad ambitto prosecutorial discretion"); 

### UnitedStates 

### 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 ofdiscretion); 

### see also TEX. CODE CRIM. PROC. ANN. art. 2.01 (Vernon 2005) ("It shall be the primary duty ofall prosecuting attorneys, including any special prosecutors, not to convict, but to see thatjustice 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 ifGovernment Code section 531.0972 were construed as an exceptionto prosecutionunderthe Texas Controlled Substances Act, participants inaneedle- and syringe-exchange program could possibly be subject to prosecution under other laws. By way of example only, ifan adultparticipant 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-exchangeprogramdistribute drugparaphernalia, theiractions mayconstitutefederal criminal conspiracy. 

### See 18 U.S.C. 

### § 371 (2000). Ifa 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 thatneither Government Code section 531.0972 northe Texas Controlled Substances Actexcepts fromprosecutionpersons who possess drugparaphernaliawhileparticipating 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 JeffWentworth

- Page 8 (GA-0622)

SUMMARY

In May of2007, the Legislature authorized apilotprogram in Bexar County "to preventthe spread ofHIV, hepatitis B, hepatitis C, and otherinfectious and communicable diseases." TEX. GOV'TCODE ANN. § 

### 531.0972 (Vernon Supp. 2007). The legislationprovidedthat the HealthandHuman Services Commission 

### "mayprovide guidance" to Bexar County in establishing such a program. Id. 

### (emphasis added). The statute also allowed

### Bexar Countyto 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 programneednotinclude aneedle- and syringe-exchangecomponent. IfBexar County's pilot disease-preventionprogram 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 criminalprosecutionunderthe Texas Controlled Substances Act. Because the Legislature has expressly demonstratedits abilityandwillingnessto 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 prosecutionunderthe Texas Controlled Substances Act, participants may face criminal charges under other Texas or federal statutes.

### The Honorable JeffWentworth

- Page 9 (GA-0622)

Finally, any decision to prosecute program participants is a matter ofprosecutorial 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