    The Attorney                 General       of Texas

                        April    21, 1981


Honorable Charles Evans, Chairman            Opinion No. W-326
House Committee on Government
  Organization                               Re: Constitutionality      of   House
P. 0. Box 2910                               Bill 733
Austin, Texas 76769

Dear Representative    Evans:

      You    have requested our opinion regarding the constitutionality   of
House Bill    733, presently pending In the 67th Legislature. The bill would
~amend the    Texas Controlled Substances Act, article 4476-15, V.T.C.S., by
adding the   following:

             Sec. 4.07. POSSESSION OR DRLIVRRY OF DRUG
             PARAPHERNALIA

                 (a) A person commits an offense if he knowingly
             or intentionally uses or possesses with intent to use
             drug paraphernalia    to plant, propagate, cultivate,
             grow, harvest, manufacture,        compound, convert,
             produce,    process, prepare,    test, analyze,  pack,
             repack, store, contain, or conceal a controlled sub-
             stance in violation of this Act or to inject, ingest,
             inhale, or otherwise introduce into the human body a
             controlled substance in violation of this Act.

                 (b) A person commits an offense if he knowingly
             or intentionally    delivers, possesses with intent to
             deliver, or manufactures with intent to deliver drug
             paraphernalia knowing that the person who receives
             or who is intended to receive the drug paraphernalia
             intends that it be used to plant, propagate, cultivate,
             grow, harvest,      manufacture,    compound, convert,
             produce,    process, prepare,     test, analyze,   pack,
             repack, store, contain, or conceal a controlled sub
             stance in violation of this Act or to inject, ingest,
             inhale, or otherwise introduce into the human body a
             controlled substance in violation of this Act.

                (cl A person commits an aggravated offense if he
             commits an offense under Subsection (b) of this



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Honorable Charles Evans - Page Two            (MW-326)




            section, is 18 years of age or older, and the person who receives
            or who is intended to receive the drug paraphernalia is under 18
            years of age and at least three years younger than the actor.

                (d) An offense under Subsection          (a) of this section   is a
            Class C misdemeanor.

                 (e) An offense under Subsection (b) of this section is a
            Class A misdemeanor. If it be shown on a trial for violation of
            Subsection (b) of this section, that the defendant has been
            before convicted of Subsection (b) or (c) of this section, then an
            offense under Subsection (b) of this section is a felony of the
            third degree.

                (f) An offense under Subsection          (c) of this section   is a
            felony of the third degree.

The bill defines “drug paraphernalia”   as:

           equipment, a product, or a material of any kind that is used or
           intended for use in planting, propagating, cultivating, growing,
           harvesting, manufacturing, compounding, converting, producing,
           processing, preparing, testing, analyzing, packaging, repack-
           aging, storing, containing, or concealing a controlled substance
           in violation of this Act or in injecting, ingesting, inhaling, or
           otherwise introducing into the human body a controlled sub-
           stance in violation of this Act. It includes, but is not limited to:

                (A) a kit used or intended for use in planting, propagating,
            cultivating, growing, or harvesting any species of plant that is a
            controlled substance or from which a controlled substance can
            be derived;

               (B) a kit used or intended for uss in manufacturing,
           compounding, converting, producing, processing, or preparing a
           controlled substance;

               (C) an isomerization     device used or intended for use in
           increasing the potency       of any species of plant that is a
           controlled substance;

               (D) testing equipment used or intended for use in identify-
           ing or in analyzing the strength, effectiveness, or purity of a
           controlled substance;

              (E) a scale or balance used or intended for use in weighing
           or measuring a controlled substance;



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Honorable Charles Evans - Page Three          W-326)




              (P) a diluent or adulterant, such as quinine hydrochloride,
          mannitol, mannite, dextrose, or lactose, used or intended for
          use in cutting a controlled substance;

               (G) a separation gin or sifter used or intended for use in
          removing twigs and seeds from or in otherwise cleaning or
          refining marijuana;

              (H) a blender, bowl, container,~ spoon, or mixing device used
          or intended for use in compounding a controlled substance;

              (I) a capsule, balloon, envelope, or other container used or
          intended for use in packaging small quantities of a controlled
          substance;

               (J) a container or other object used or intended ‘for use in
          storing or concealing a controlled substance;

              (K) a hypodermic syringe, needle, or other object used or
          intended for use in parenterally injecting a controlled substance
          into the human bo9; and

              (L) an object used or ,intended for use in ingesting, inhaling,
          or otherwise introducing marijuana, cocaine, hashish, or hashish
          oil into the human body, such as:

                  (i)    a metal, wooden, acrylic, glass stone,
                  plastic, or ceramic pipe with or without a screen,
                  permanent screen, hashish head, or punctured
                  metal bowl;

                  (ii)    a water pipe;

                  (iii)   a carburetion    tube or device;

                  (iv)    a smoking or carburetion     mash

                  cd      a chamber pipe;

                  (Vi) a carburetor       pipe;

                  (vii) an electric pipe;

                  (viii) an air-driven pipe;

                  (id     a chillum;




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    Honorable Charles Evans - Page Four          (Mu-326)




                        W      a bong; or

                        (xi)   an ice pipe or chiller.

     The bill ako provides the following:

               Sec. 5.15. EVIDRRTIARY RULES. In               considering whether an
               item is drug paraphernalia under this           Act, a court or other
               authority  shall consider, in addition          to all other logically
               relevant factors, and subject to current      rules of evidence:

                   (1) statements by an owner or by anyone in control of the
               object concerning its use;

                   (2) prior convictions, if any, of an owner or of anyone in
               control of the object, under any state or federal law relating to
               controlled substances;

                   [no Subsection (3) appears in text of billi

                   (4) the existence    of any residue of controlled substances on
               the object;

                   (5) direct or circumstantial   evidence of the intent of an
               owner or of anyone in control of the object to deliver it to
               persons whom he knows or should reasonably know intended to
               use the object to facilitate      a violation of this Act (the
               innocence of an owner or of anyone in control of the object as
               to a direct violation of this Act does not prevent a finding that
               the object is intended for use or designed for use as drug
               paraphernalia);

                  (6) instructions,     oral or written,    provided with the object
               concerning its use;

                    (7) descriptive materials      accompanying    the object   which
                explain or depict its use;

                   (6) the manner in which the object is displayed for sale;

                   (9) whether the owner or anyone in control of the object is
               a supplier of similar or related items to the community, such as
               a licensed distributor or dealer of tobacco products;

                   (10) direct or circumstantial   evidence of the ratio of sales
               of the object to the total sales of the business enterprise;

                    (10 the existence and scope of legitimate           uses for the
                object in the community;




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Honorable Charles Evans - Page Five        (MW-326)




               (12) the physical design characteristics   of the item; and

               03) expert testimony concerning its use.

       Since 1978, a substantial number of state and municipalities        have adopted
statutes and ordinances prohibiting, in varying degrees, the possession and sale of drug
paraphernalia.    Many of the early attempts at such legislation were held unconstitu-
tional bv the federal courts, urimarilv on the mounds of vagueness and overbreadth.
y,                                              . - e of
      e.6, Flipside? Hoffman E&&s, hit. v. Villag     (8 Hoffman
                                                          c. 1 o) Estates, 639 F. 2d 373
 7th Cu. 1981); Geiger v. City of Eagan, 618 F. 2d 26 th v. 98 ; Record Head Corp.
v. Sachen, 498 F. Supp. 88 (E.D. Wis 1980); Music Stop, Inc. v. CityxFerndale,    488 F.
Supp. 390 (E.D. Mich. 1980); Knoedler v. Roxbury Townshi        485 F. Supp. 990 (D.N.J.
1980); High 01’ Times, Inc. v. Busbee, 456 F. Supp. 1035 N.D. Ga. 19781, alPd per
curiam, 621 F. 2d 141(5th Cir. 1980).

      In respome to these court decisions, the United States Department of Justice, in
August 1979, drafted a Model Drug Paraphernalia Act, which has been widely adopted.
Most courts which have considered statutes or ordinances based upon the Model Act
have upheld their validity.    See, e.g., Tobacco Accessories & Novelty Craftsmen
Merchants Ass’n of Louisiana v. Treen, 501 F. Supp. 168 (E.D. La. 1980); MidAtlantic
Accessories Trade Ass’n v. State of Maryland, 500 F. Supp. 834 (D. Md. 1980); Delaware
Accessories Trade Ass% v. Gebelein, 497 F. Supp. 289 (D. DeL 1980); World Imports,
Inc. v. Woodbridge Township, 493 F. Supp. 428 (D.N.J. 1980). In one instance, a court
held a statute invalid only to the extent it departed from the Model Act. Florida
C                                                    499 F. Supp. 346 (N.D. Fla.1980).

      In only one case, however, has a statute or ordinance based on the Model Act
reached the federal appellate 1eveL See Flipside,                            639 F. 2d at
375. 376 (brief review of the historv osraohernalia     statutes to Janaurv 1981X In that
case, Record Revolution No. 6, Inc.-v. City of Parma, 638 F. 2d 916 (6th Cir. 1980), the
court found certain portions of an ordinance based on the Model Act to be
unconstitutional     Significantly, every portion held invalid by the court has been
removed from the present version of House Bill 733. Thus, House Bill 733, as amended,
has been upheld in all respects by the only federal appellate court which has considered
the matter. The municipality in the City of Parma case filed its appeal to the United
States Supreme Court on March 3, 1981 (Docket No. 80-1507), but as of this date, the
Supreme Court has taken no action thereon.

       The Model Act defines “drug paraphernalia” to’include “all equipment, products
and materials of any kind which are used, intended for use, or desi ed for use” in
violating the drug laws. (Emphasis added). House Bill 733 omits the   ~-s---f-
                                                                          deqned or use”
aspect of the test,      The court in City of Parma says that the “designed for use”
standard sanctions transferred     intent, and “gives no hint to those attempting to
comply. . . what is included in the definition .‘I 638 F. 2d at 928,930. There may be no
“design” characteristics    of an item, the court says, that distinguish lawful from
unlawful purposes. As a result, “defining drug paraphernalia in terms of ‘design’ is
vague and overbroad.” rd, at 931. By contrast, the terms %se” and “intended for use,”
at least on their face, are not vague or overbroad. &&at 929.



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Honorable Charles Evans - Page Six W-326)




       In its examples of drug paraphernalia, the Model Act lists items which may be
considered drug paraphernalia,    provided they are ako used, intended for use, or
designed for use in violating the drug laws. The City of Parma court concludes that
any attempt to construe the listed items as drug paraphernalia per    would render the
statute vague and overbroad. $&at 932. House Bill 733 does not do so. It is clear that
it views the listed items as examples only. It must still be proved that a particular
item was “used or intended for use” in violating the drug laws. The court does strike
down two of the listed items of paraphernalia, “roach clips” and “miniature cocaine
spoons,” on the ground of lack of precision in those terms. Id. at 932-33. Again,
however, House Bill 733 omits these items from its list of examp= of paraphernalia.

      In its section labeled “evidentiary rules,” the Model Act lists a number of factors
to be considered in determining whether an item is drug paraphernalia, “sv?ject to
current rules of evidence.” Although the court in City of Parma does not say that any
of these factors is overbroad on its face, it finds problems with several of them. One,
“the proximity of the object, in time and space, to a direct violation of the Act or to a
controlled substance,” sanctions guilt by association, according to the court. J& at
933. This factor is omitted from House Bill 733. Another factor which the court
implicity faults, and which House Bill 733 omits, is “national and local advertising
concerning its use.” On the basis of the court’s argument, consideration of this factor
would make the retailer responsible for media advertising over which he has no
controL

       House Bill 733 adds one factor which is not present in the ordinance considered in
City. of Parmy       We physical design characteristics       of the item.”    Since the
consideration o “design” is here inserted merely as an item of evidence, and is not
part of the definition of drug pharaphernalia,     the Sixth Circuit, as with the other
questionable evidentiary factors considered above, would probably not declare it to be
overbroad on its face. Because Vesign” is ambiguous, however in the context of a
multi-use item, and since the “designed for use” standard was held invalid by the court
in considering the definition of Vrug paraphernalia,” it is our opinion that House Bill
733 would be improved if this factor were removed from the list of evidentiary
factors

        The Model Act makes unlawful the delivery, sale or possession with intent to
deliver or sell drug paraphernalia,      “knowing, or under circumstances     where one
reasonably should know, ” that it will be used to violate the drug laws. The court in
City of Parma says this “reason to know” standard is vague and overbroad, because it is
“too open-ended and too susceptible to misapplication to satisfy the dictates of due
plWX!SS.” Id. at 935-36. House Bill 733 omits “reason to know,” requiring instead a
standard oFknowing       that the person who receives or who is intended to receive the
drug paraphernalia” intends to use it~~toviolate the drug laws. Clearly, such a standard
satisfies the court’s objections in City of Parma.

      The Model Act creates an offense of placing in any publication any advertise-
ment, “knowing or under circumstances where one reasonably should know, that the
purpose of the advertising, in whole or in part, is to promote the sale of objects
designed or intended for use as drug paraphernalia.” The City of Parma court holck




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Honorable Charles Evans - Page Seven         (MW-326)




that this provision violates “the First Amendment right of free speech.” !&. at 937.
Again, however, House Bill 733 is not affected, because it does not create an offense
for the advertising of drug paraphernalia.

       It is clear that the drafters of House Bill 733 have paid careful attention to the
court’s decision in City of Parma and have amended their bill so as to remove the
court’s objections.     It appears that House Bill 733 would satisfy the constitutional
standards of the Texas and federal courts,        We conclude, therefore, that with the
exception noted, House Bill 733 would be upheld as constitutional
                                      SUMMARY

               House Bill 733 is constitutional




                                                  M A R-E W HI T E
                                                  Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

RICHARD E.GRAY III
Executive Assistant Attorney General

Prepared by Rick Gilpin
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Gerald C. Carruth
Judge Leon Douglas
Bruce Youngblood




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