MARK WHITE 

Attorney General 

The Attorney General of Texas 

April 14, 1980 

Honorable Ben Z. Grant, Chairman 

Judiciary Committee 

House of Representatives 

Austin, Texas 

Opinion No. MW-167 

Re: Authority of a municipality 

to enact an ordinance providing for 

a fine for possession of marihuana. 

Dear Representative Grant: 

You ask whether there exists in Texas a criminal offense of “criminal 

intent” to possess a controlled substance such as marihuana, and whether a 

city can enact an ordinance providing for imposition of a fine for possession 

of less than two (2) ounces of marihuana. 

Criminal intent, or mens rea refers to a culpable mental state defined 

by Penal Code section m&which provides that “[al person acts 

intentionally, or with intent, with respect to the nature of his conduct or to 

a result of his conduct when it is his conscious objective or desire to engage 

in the conduct or cause the result” Although “criminal intent,” without 

more, would not constitute a penal offense, it is one of the constituent 

elements of the offense of “criminal attempt.” 

Criminal attempt is defined by Penal Code section 15.01(a), which 

provides that “[aI person commits an offense if, with specific intent’ to 

commit an offense, he &es an act amounting to more than mere preparation 

that tends but fails to effect the commission of the offense intended.” The 

punishment for criminal attempt is one category lower than the offense 

atte’mpted. Penal Code S 15.01(d). 

The Texas Court of Criminal Appeals has repeatedly held that the 

offense of criminal attempt under Penal Code section 15.01 does not apply to 

offenses under tbe Controlled Substances Act, article 44i6-15, V.T.C.S., 

which contains no general criminal attempt provision. Brown v. State, 568 

S.W.2d 137 (Tex. Crim. App. 1976) Rx 

Crim. App. 1976); Rx parte Barne~,‘&%%$l’~~l %?!48~4 lah7; 

Moore v. State, 545 S.W.2d 140 (Tex. Grim. App. 1976). 

An amendment to section 4.09(a)@) of the Controlled Substances Act, 

effective May 2, 1979, prohibits an attempt to acquire or obtain possession 

of a controlled substance by misrepresentation, fraud, forgery, deception, or 

;. 532 
. - 

c , 

7 

/~ . . - . 

Honorable Ben 2. Grants - Page Two (Mw-167) 

subterfuge. However, the legislature did not provide’s general criminal attempt provision 

for violations of the Controlled Substances Act. 

Since possession of marihuana is regulated by the Controlled Substances Act, there 

can be no offense of “criminal intent” (or criminal attempt) to possess marihuana, or any 

other controlled substance, unless the attempt to possess the controlled substance 

constitutes a fraud offense pursuant to section 4.09(a)(3). An offense under section 

4.09(a)(3) is a felony of the second degree if the controlled substance is classified in 

Schedule I or II of the Controlled Substances Act. V.T.C.S. art. 4476-15, S 4.09(b)(l). 

Marihuana is a Schedule I controlled substance. V.T.C.S. art. 4476-15, § 2.03(d)(13). Ex 

574 S.W.2d 568 (Tex. Crim. App. 1978); Whitaker v. State, 572 S,W.2d 956 

Penal Code section LO8 provides: 

No governmental subdivision or agency may enact or enforce a law 

that makes any conduct covered by this code an offense subject to 

a criminal penalty. This section shall apply only as long as the law 

governing the conduct proscribed by this code is legally 

enforceable. 

Penal Code section LO8 is made applicable to the Controlled Substances Act by Penal 

Code section L03(b), which provides that the provisions of Titles I, 2, and 3 of the Penal 

Code apply to offenses &fined by other laws, unless the statute defining the offense 

provides otherwise. 

Since the possession of two (2) ounces or.less of marihuana is punishable as a Class B 

misdemeanor under section 4.05(b)(3) of the Controlled Substances Act, a municipality 

would be preempted by state law from enacting sn ordinance providing for a fine for the 

possession of less than two (2) ounces of marihuana as long as section 4.05(b)(3) of the 

Controlled Substances Act is legally enforceable. 

SUMMARY 

There can be no.offense of wcriminal intent” (or criminal attempt) 

to ~possess marihuana. A municipality is preempted by state law 

from enacting an ordinance providing for the imposition of a fine 

for possession of msrihuana. 

/-2i!= 

MARK WHITE 

Attorney General of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

p. 533 
Honorable Ben Z. Grant - PageThree (m-167) 

TED L. HARTLEY 

Executive Assistant Attorney General 

Prepared by Gerald Carruth 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

C. Robert Heath, Chairman 

Gerald Carruth 

Susan Garrison 

Rick Gllpin 

Bruce Youngblood 

‘P. 534