Judges: MARK WHITE, Attorney General of Texas
Filed Date: 4/14/1980
Status: Precedential
Modified Date: 7/6/2016
Honorable Ben Z. Grant Chairman Judiciary Committee House of Representatives Austin, Texas
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
Criminal attempt is defined by Penal Code section
The Texas Court of Criminal Appeals has repeatedly held that the offense of criminal attempt under Penal Code section
An amendment to section 4.09(a)(3) 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 subterfuge. However, the legislature did not provide a 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, § 4.09(b)(1). Marihuana is a Schedule I controlled substance. V.T.C.S. art. 4476-15, § 2.03(d)(13). Ex parte Osbourn,
Penal Code section
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
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 an 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.
Very truly yours,
Mark White Attorney General of Texas
John W. Fainter, Jr. First Assistant Attorney General
Ted L. Hartley Executive Assistant Attorney General
Prepared by Gerald Carruah Assistant Attorney General