MARK WHITE Attorney General 

# The Attorney General of Texas April 14, 1980

Honorable BenZ.Grant, Chairman Judiciary Committee House ofRepresentatives Austin, Texas Opinion No. MW-167 Re: Authority of a municipality to enact an ordinance providing for afine for possession of marihuana. Dear Representative Grant: You ask whether there exists inTexas 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 ofless than two (2)ounces of marihuana. Criminal intent, or mensrea refers to aculpable mental state defined by Penal Code section m&which provides that “[al person acts intentionally, or with intent, with respect to the nature ofhis conduct orto a result of his conduct when it is hisconscious 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 S15.01(d). The Texas Court of Criminal Appeals has repeatedly held that the offense of criminal attempt under Penal Code section 15.01does 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);Rxparte Barne~,‘&%%$l’~~l %?!48~4 lah7; Moore v.State, 545S.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

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Honorable Ben2. Grants - Page Two (Mw-167)
subterfuge. However, the legislature did not provide’s general criminal attempt provision for violations ofthe 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, S4.09(b)(l). Marihuana is a Schedule I controlled substance. V.T.C.S. art. 4476-15, §2.03(d)(13). Ex

574S.W.2d 568 (Tex. Crim. App. 1978); Whitaker v.State, 572 S,W.2d 956
Penal Code section LO8provides: Nogovernmental subdivision or agency may enact or enforce alaw 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 LO8is made applicable to the Controlled Substances Act by Penal Code section L03(b), which provides that the provisions of Titles I, 2, and 3of 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 ispunishable as aClass 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 islegally 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 ofTexas JOHN W.FAINTER, JR. First Assistant Attorney General

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TEDL.HARTLEY Executive Assistant Attorney General Prepared byGerald Carruth Assistant Attorney General APPROVED: OPINION COMMITTEE C. Robert Heath, Chairman Gerald Carruth Susan Garrison Rick Gllpin Bruce Youngblood

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