TITLE 37. PUBLIC SAFETY AND CORRECTIONS

PART 1. TEXAS DEPARTMENT OF PUBLIC SAFETY

CHAPTER 13. CONTROLLED SUBSTANCES

SUBCHAPTER G. FORFEITURE AND DESTRUCTION

37 TAC §13.151

The Texas Department of Public Safety (the department) proposes amendments to §13.151, concerning Subchapter Definitions. Amendments to §13.151 are necessary to ensure compliance with §13.157(d) concerning the modification of the definition of "excess quantity". Further modification has been necessary due to physical storage limitations and the need for continued and improved controlled substance diversion control.

Suzy Whittenton, Chief Financial Officer, has determined that for each year of the first five-year period this rule is in effect there will be no fiscal implications for state or local government, or local economies.

Ms. Whittenton has also determined that there will be no adverse economic effect on small businesses or micro-businesses required to comply with this rule as proposed. There is no anticipated economic cost to individuals who are required to comply with the rule as proposed. There is no anticipated negative impact on local employment.

In addition, Ms. Whittenton has also determined that for each year of the first five-year period the rule is in effect, the public benefit anticipated as a result of enforcing the rule will be effective usages of current storage facilities without the need for additional expenditures and assured public confidence that appropriate mechanisms are in place to minimize the likelihood of pilferage or other unlawful diversion of controlled substances.

The department has determined this proposal is not a "major environmental rule" as defined by Texas Government Code, §2001.0225. "Major environmental rule" is defined to mean a rule that the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.

The department has determined that Chapter 2007 of the Texas Government Code does not apply to this proposal. Accordingly, the department is not required to complete a takings impact assessment regarding this proposal.

Comments on this proposal may be submitted to Jennifer Howard, Texas Department of Public Safety, 5800 Guadalupe Street, Austin, Texas 78752 or jennifer.howard@dps.texas.gov. Comments must be received no later than thirty (30) days from the date of publication of this proposal.

These amendments are proposed pursuant to Texas Health and Safety Code, §§481.003, which authorizes the director to adopt rules to administer and enforce Chapter 481, §§481.153 and 481.154.

Texas Health and Safety Code, §§481.003, 481.153, and 481.154 are affected by this proposal.

§13.151.Subchapter Definitions.

The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise.

(1) Abusable volatile chemical [Abusable glue and aerosol paint]--Has the meaning given that term by the Texas Health and Safety Code, Chapter 485. In addition, abusable volatile chemicals also include any derivative products, such as, glues, aerosol paint, aerosol adhesives, aerosol spray air, and cement adhesives or any other product containing an abusable volatile chemical.

(2) Excess quantity--Unless otherwise modified under §13.157(d) of this title (relating to SOP for Destruction By Laboratory or Agency--Security Control), more than:

(A) one kilogram [two kilograms] of bulk dry evidence, such as powder;

(B) 500 milliliters of bulk liquid evidence, such as a chemical precursor or liquid controlled substance;

(C) 200 dosage or abuse units of an item, such as tablets, capsules, liquids, or other items so measured;

(D) 250 grams [50 pounds] of bulk packaged marihuana;

(E) five individual controlled substance plants, such as marihuana or peyote; or

(F) five miscellaneous items of drug or inhalant paraphernalia.

(3) Hazardous material--An item that:

(A) creates a health or environmental hazard or prohibits safe storage because of its nature and quantity; or

(B) meets the hazardous waste criteria of the United States Environmental Protection Agency (EPA), because of its nature, including its corrosivity, ignitability, reactivity, toxicity, or other hazardous characteristic.

(4) Item--Controlled substance property, controlled substance plant, simulated controlled substance, volatile chemical or related inhalant paraphernalia, or abusable glue, aerosol paint, or related inhalant paraphernalia, as those terms are used in the Texas Health and Safety Code, Chapters 481 - 485.

(5) Laboratory--A crime laboratory located in this state that holds a registration number for the analysis of a controlled substance from the [director and] DEA.

(6) Lawful possession--Includes the possession of an item obtained in accordance with state or federal law.

(7) Simulated controlled substance--Has the meaning given that term by the Texas Health and Safety Code, Chapter 482.

(8) SOP--A standard operation procedure established under this subchapter.

[(9) Volatile chemical--Has the meaning given that term by the Texas Health and Safety Code, Chapter 484.]

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 20, 2017.

TRD-201700283

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Earliest possible date of adoption: March 5, 2017

For further information, please call: (512) 424-5848


PART 5. TEXAS BOARD OF PARDONS AND PAROLES

CHAPTER 145. PAROLE

SUBCHAPTER A. PAROLE PROCESS

37 TAC §145.18

The Texas Board of Pardons and Paroles proposes an amendment to 37 TAC Chapter 145, §145.18, concerning action upon review; extraordinary vote (HB 1914). The amendment is proposed to add "with a life sentence" to subsection (a).

David Gutiérrez, Chair of the Board, determined that for each year of the first five-year period the proposed amendment is in effect, no fiscal implications exist for state or local government as a result of enforcing or administering this section.

Mr. Gutiérrez also has determined that for each year of the first five years the proposed amendment is in effect, the public benefit anticipated as a result of enforcing the amendment to this section will be to ensure consistency between this rule and Board Policy. There will be no effect on small businesses. There is no anticipated economic cost to persons required to comply with the amended rule as proposed.

An Economic Impact Statement and Regulatory Flexibility Analysis is not required because the proposed amendment will not have an economic effect on small businesses as defined in Texas Government Code §2006.001(2).

Comments should be directed to Bettie Wells, General Counsel, Texas Board of Pardons and Paroles, 209 W. 14th Street, Suite 500, Austin, Texas 78701 or by e-mail to bettie.wells@tdcj.texas.gov. Written comments from the general public should be received within 30 days of the publication of this proposal.

The amendment is proposed under Texas Government Code §§508.036, 508.0441, 508.141, and 508.149. Section 508.036 requires the board to adopt rules relating to the decision-making processes used by the board and parole panels. Section 508.0441 authorize the Board to adopt reasonable rules as proper or necessary relating to the eligibility of an offender for release to mandatory supervision and to act on matters of release to mandatory supervision. Section 508.141 provides the board authority to adopt policy establishing the date on which the board may reconsider for release an inmate who has previously been denied release. Section 508.149 provides authority for the discretionary release of offenders on mandatory supervision.

No other statutes, articles, or codes are affected by these amendments.

§145.18.Action upon Review; Extraordinary Vote (HB 1914).

(a) This section applies to any offender convicted of a capital offense with a life sentence, who is eligible for parole, and an offense under Texas Penal Code, Section 22.021. All members of the board shall vote on the release of an eligible offender. At least two-thirds of the members must vote favorably for the offender to be released to parole. Members of the board shall not vote until they receive and review a copy of a written report from the department on the probability of the offender committing an offense after being released.

(1) - (3) (No change.)

(b) - (e) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 20, 2017.

TRD-201700307

Bettie Wells

General Counsel

Texas Board of Pardons and Paroles

Earliest possible date of adoption: March 5, 2017

For further information, please call: (512) 406-5388