Posted: Friday, July 22, 2016
Updated: Friday, August 5, 2016*
Updated again: Friday, March 24, 2017
FINAL UPDATE: Friday, June 23, 2017
When asked why his teams didn’t pass the football very much, legendary Longhorn head coach Darrell Royal once famously replied, “Three things can happen when you pass, and two of ’em are bad.” We’ve often applied that same rule to the legislative process, but instead of the three results being completion/incompletion/interception, at the state capitol the options for a bill are passage/failure/passage with unintended consequences. Let us now give you an example of the latter.
Senate Bill 172 was one of several bills passed last session to address the growing problem of synthetic drugs, and by all accounts, the changes made by that bill have been helpful—with one exception recently brought to our attention by some eagle-eyed prosecutors. Specifically, SB 172 added a new subsection (d) to Health & Safety Code §481.103 that excludes any FDA-approved substances from Penalty Group 2 (PG2), even if specifically listed in that section. This FDA-approval language was intended by the original supporters of the bill to be limited to only certain substances in PG2, but the final version mistakenly applies that exemption to all substances listed in PG2. No one knows exactly why that was changed, but regardless, we are stuck with the plain language of this broad exemption.
We are still uncertain exactly how many PG2 substances are approved by the FDA for prescribed uses, but one of those substances is the amphetamine Adderall, a popular prescription for treating ADHD, hyperactivity, and other impulse control disorders. As a result, §481.103(d) prohibits prosecuting the illegal manufacture, delivery, or possession of Adderall as a PG2 substance after September 1, 2015. However, that doesn’t mean it can’t be prosecuted at all (contrary to what might have been implied on page 51 of our Legislative Update book last year). Instead, Adderall offenses after that date can probably still be prosecuted under Health & Safety Code §481.119 as a miscellaneous substance that is scheduled but not listed in a penalty group. *UPDATE: Another drug to which this will apply is Lisdexamfetamine in a legitimate pharmaceutical preparation (e.g., "Vyvanse").
The upshot of all this is that after September 1, 2015, most (all?) Adderall and Vyvanse crimes became misdemeanors, not felonies. Therefore, if our analysis is correct, you should immediately change your charging protocols, alert your local law enforcement to this change, and then review past cases to see if any of them need to be re-opened. So … good luck with that! If you discover other PG2 substances that are FDA-approved, please let us know so we can spread the word. And if you have further questions, feel free to contact us here at TDCAA.
**The 85th Legislature passed Senate Bill 227 to eliminate this loophole and restore these substances to the same PG2 status that they had before the change if the bill is passed. As a result, these substances that were in PG 2 until September 1, 2015, will return to PG 2 substances as of September 1, 2017.