                        The Attorney               General of Texas
                                          April        14,   1980
MARK WHITE
Attorney General


                   Honorable Ben Z. Grant, Chairman                 Opinion No. MW-167
                   Judiciary Committee
                   House of Representatives                         Re: Authority of a municipality
                   Austin, Texas                                    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




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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




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