                                        NO. 12-16-00236-CR

                               IN THE COURT OF APPEALS

                  TWELFTH COURT OF APPEALS DISTRICT

                                            TYLER, TEXAS

ERIC D. NEIL,                                            §       APPEAL FROM THE 349TH
APPELLANT

V.                                                       §       JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                                 §       HOUSTON COUNTY, TEXAS

                                        MEMORANDUM OPINION
        Eric Neil appeals his conviction for possession of a prohibited substance in a correctional
facility. In two issues, he appeals the constitutionality of the statute and the sufficiency of the
evidence. We affirm.


                                                 BACKGROUND
        Appellant, an inmate at the Eastham Unit, was charged with possession of a prohibited
substance in a correctional facility when he was found in possession of XLR-11, a synthetic
cannabinoid. At the time of the incident, XLR-11 was listed as a controlled substance by the
Texas Department of State Health Services (DSHS), but had not yet been included in penalty
group 2A of the Texas Health and Safety Code or permanently added as a schedule I controlled
substance.1 Appellant was indicted by a grand jury and elected to enter a plea of “guilty” and
accept a plea bargain recommendation of four years imprisonment.
        Prior to entering his plea, Appellant moved the trial court to dismiss the indictment on the
grounds that XLR-11 had been designated a controlled substance by the commissioner of the
DSHS and not the Texas Legislature, thereby violating the separation of powers clause to the

        1
          Appellant’s brief lists the date of offense as February 16, 2014, however, a review of the record indicates
the indictment, the plea papers, the judgment of conviction, and incident report all reflect the correct date of the
offense as on or about February 16, 2015.
Texas Constitution. The trial court denied Appellant’s motion, and Appellant pleaded “guilty” to
the indictment. Appellant was sentenced to imprisonment for four years, and the trial court
granted him the right to pursue the present appeal.


                                         SEPARATION OF POWERS
       In his first issue, Appellant argues that the DSHS, an agency of the executive branch,
performed a legislative function by criminalizing XLR-11 in violation of the separation of powers
clause of Article II, section 1 of the Texas Constitution.
Applicable Law
       The government of the state of Texas consists of three distinct branches; one legislative,
one executive, and one judicial. TEX. CONST. art. II § 1. The separation of powers clause
provides that “no person, or collection of persons, being of one of these departments, shall
exercise any power properly to either of the others, except in the instances herein expressly
permitted.” Id. The court of criminal appeals has held that the separation of powers clause may
be violated when (1) one branch of government assumes, or is delegated, to whatever degree, a
power that is more properly attached to another branch, or (2) one branch unduly interferes with
another branch so that the other branch cannot effectively exercise its constitutionally assigned
powers. State v. Rhine, 297 S.W.3d 301, 305 (Tex. Crim. App. 2009).
       The legislature has the exclusive authority to define crimes and to designate the
punishments for those crimes. See Grant v. State, 505 S.W.2d 279, 282 (Tex. Crim. App. 1974).
However, there are many powers that may be delegated by the legislature to other bodies where
the legislature cannot itself practically or efficiently perform the required functions. Ex Parte
Granviel, 561 S.W.2d 503, 514 (Tex. Crim. App. 1978). The legislature may, after declaring a
policy and fixing a primary standard, delegate to an administrative body or officer the power to
establish rules, regulations, or minimum standards to implement the expressed purpose of the act.
Id.
       The concurring opinion in Rhine distinguished between a law that properly confers
administrative authority and one that improperly delegates legislative authority, stating “[t]he
legislature cannot delegate its power to make law; but it can make a law to delegate a power to
determine some fact or state of things upon which the law makes or intends to make its own
action depend…[t]o deny this would be to stop the wheels of government.” Rhine, 297 S.W.3d at



                                                  2
320–21 (Keller, P.J., concurring) (quoting Marshall Field & Co. v. Clark, 143 U.S. 649, 694, 12
S. Ct. 495, 505, 36 L. Ed. 294 (1892)).


                      [A] delegation of authority to an administrative agency is constitutionally
            permissible under the separation-of-powers provision of the Texas Constitution if the
            following four conditions are met: (1) the delegation can, at lease by implication, be
            characterized as the delegation of authority to make a factual determination relevant to
            the purpose of the statute, rather than simply a policy decision, (2) the statute contains
            standards, expressly provided or implied from an express statutory purpose, that are
            sufficiently specific to give guidance to the agency and to the courts as to what types of
            rules or other actions are and are not permissible, (3) pre-adoption procedural safeguards
            exist to ensure that the agency has the opportunity to consider whether the rule or other
            action conforms to the legislative standards, and (4) post-adoption judicial review is
            available to ensure that the agency rule or other action does in fact comply with the
            legislative standards.


Rhine, 297 S.W.3d at 327-328.
       A person commits an offense under section 38.11 of the Texas Penal Code if he possesses
a controlled substance or dangerous drug while in a correctional facility or on property owned,
used, or controlled by a correctional facility. TEX. PENAL CODE ANN. § 38.11(d)(1) (West 2016).
“Controlled substance” is defined by section 481.002 of the Texas Health and Safety Code as a
substance, including a drug, adulterant, and dilutant, listed in schedules I through V or penalty
groups 1 through 4. Id. § 1.07(12) (West Supp. 2016); TEX. HEALTH & SAFETY CODE ANN.
§ 481.002(5) (West 2017). The health and safety code expressly provides that the commissioner
of state health services “shall establish and modify” schedules I, II, III, IV, and V. TEX. HEALTH
& SAFETY CODE ANN. § 481.032(a) (West 2017).
       Section 481.035 directs the commissioner to place a substance in one of the
aforementioned schedules depending on its (1) potential for abuse, (2) accepted medical uses, and
(3) degree of psychological or physical dependence resultant from its abuse. See id. § 481.035
(West 2017). The commissioner placed XLR-11 in schedule I based on findings that XLR-11 has
a high potential for abuse, and has no accepted medical use in treatment or lacks accepted safety
for use in treatment under medical supervision.               See id. § 481.035(a).         Section 481.034(c)
prohibits the commissioner from adding a substance to the schedules if it has been deleted from
them by the legislature, deleting a substance from the schedules if it has been added by the
legislature, or rescheduling a substance if it has been placed in a schedule by the legislature. See
id. § 481.034(c) (West 2017). The commissioner is required to consider the following factors in
making a determination regarding the scheduling of a substance: (1) the actual or relative potential


                                                        3
for its abuse; (2) the scientific evidence of its pharmacological effect, if known; (3) the state of
current scientific knowledge regarding the substance; (4) the history and current pattern of its
abuse; (5) the scope, duration, and significance of its abuse; (6) the risk to the public health; (7)
the potential of the substance to produce psychological or physiological dependence liability; and
(8) whether the substance is a controlled substance analogue, chemical precursor, or an immediate
precursor of a substance controlled under this chapter. Id. § 481.034(d).
Analysis
       Appellant argues that when he was indicted in 2014, XLR-11, synthetic marijuana, was a
temporary addition to Schedule I but had not yet been added to a penalty group by the legislature.
Appellant maintains that health and safety code sections 481.002(5), 481.032, 481.034, and
481.035 operate together to allow the commissioner to create a penal offense, which is a purely
legislative function. This exercise of a legislative function by an officer of the executive branch,
he argues, violates the separation of powers clause of the Texas Constitution. Thus, he contends
that his conviction is the direct result of an unconstitutional exercise of authority by DSHS.
       In support of Appellant’s argument, he directs our attention to the legislation which added
XLR-11 to penalty group 2-A effective September 1, 2015. TEX. S.B. 173, 84th Leg., R.S. (2015)
(current version at TEX. HEALTH & SAFETY CODE ANN. § 481.1031 (West 2017)). However,
Appellant’s argument is based on the erroneous assertion that he was indicted in 2014; a review of
the record shows that Appellant’s indictment was filed on December 4, 2015. The indictment
itself is file stamped December 4, 2015 and the docket sheet indicates the same date. Further, the
date of the offense alleged throughout the record is February 16, 2015, rendering an indictment in
2014 for the offense impossible. Thus, at the time Appellant was indicted for the offense of
prohibited substance in a correctional facility, XLR-11 had already been assigned to penalty group
2-A by the Texas Legislature. See TEX. S.B. 173, 84th Leg., R.S. (2015) (current version at TEX.
HEALTH & SAFETY CODE ANN. § 481.1031).
       Moreover, even had Appellant been indicted before XLR-11 was added to a penalty group,
there is no violation of the separation of powers clause. Appellant was charged with an offense
pursuant to section 38.11 of the Texas Penal Code, which criminalizes the possession of
controlled substances in a correctional facility. See TEX. PENAL CODE ANN. § 38.11(d)(1). An
offense under this section is a third degree felony, punishable by not less than two years, but not
more than ten years of imprisonment.         See Id. §§ 12.34(a) (West 2011), 38.11(g).          The



                                                  4
commissioner designated XLR-11 as a controlled substance when it was temporarily assigned to
schedule I because he determined that it had a high potential for abuse and no accepted medical
use. See TEX. HEALTH & SAFETY CODE ANN. § 481.035(a)(1)(2). Thereafter, possession of XLR-
11 in a correctional facility became an offense. See TEX. PENAL CODE ANN. §§ 1.07(a)(12);
38.11(d); TEX. HEALTH & SAFETY CODE ANN. § 481.002(5).
       The legislature established a policy that it be illegal to possess certain items, including
controlled substances, in correctional facilities. TEX. PENAL CODE ANN. § 38.11; TEX. HEALTH &
SAFETY CODE ANN. §§ 481.002(5), 481.035. The legislature’s delegation to DSHS of the task of
making the factual determination which substances should be controlled and to what schedule
they should be assigned is not a violation of the separation of powers clause. See Granviel, 561
S.W.2d at 514. It constitutes the delegation of fact finding to an agency more suited to the task
than the state legislature, and a delegation of authority to make a factual determination relevant to
the purpose of the statute, rather than a policy decision. See id.; see also Rhine, 297 S.W.3d at
327–28 (Keller, P.J., concurring); TEX. HEALTH & SAFETY CODE ANN. §§ 481.032, 481.034. As
previously discussed, the health and safety code sets out the specific guidelines to limit and direct
the commissioner’s factual determination as to which schedule to place a controlled substance.
See TEX. HEALTH & SAFETY CODE ANN. §§ 481.034(d), 481.035(a); see also Rhine, 297 S.W.3d
at 327–28 (Keller, P.J., concurring).      Section 481.034(c) insures that the commissioners’
determination will not contradict a specific legislative determination. See TEX. HEALTH & SAFETY
CODE ANN. § 481.034(c). Pre-adoption procedural safeguards require changes to the schedules
only be made with the approval of the executive commissioner, after a public hearing, and upon a
specific finding based on enumerated considerations. See id. § 481.034(a)-(e). This provides the
commissioner and the DSHS the opportunity to consider whether the commissioner’s decision
conforms to legislative standards. See Rhine, 297 S.W.3d at 327–28. A criminal appeal, as in the
instant case, challenging the validity of the agency’s action provides sufficient post-adoption
judicial review to insure that the commissioner’s or the DSHS’ actions comply with legislative
standards. See id.
       Based on this reasoning, we previously concluded that the commissioner did not perform a
legislative function in determining that XLR–11 was a controlled substance and placing it in
schedule 1. See Rodriguez v. State, No. 12-16-00238-CR, 2017 WL 1534044, at *4 (Tex. App.—
Tyler Apr. 28, 2017, no pet.) (mem. op., not designated for publication). We also determined that



                                                 5
sections 481.002(5), 481.032, 481.034, and 481.035 of the health and safety code do not operate
together with section 38.11(d) of the penal code to allow the commissioner to independently
create a penal offense in violation of the separation of powers clause. See id. Accordingly, we
concluded that section 481.032 of the health and safety code, which directs the commissioner to
establish and modify the schedules of controlled substances, is not an unconstitutional delegation
of legislative authority.   See id.     Thus, in keeping with this Court’s holding in Rodriguez,
Appellant’s first issue is overruled.


                                        SUFFICIENCY OF THE EVIDENCE
       In his second issue, Appellant challenges the legal sufficiency of the evidence on the
grounds that the substance he possessed, XLR-11, was temporarily listed as controlled substance
under schedule I, but not listed in penalty group 2-A.
Standard of Review
       In determining the legal sufficiency of the evidence, the reviewing court considers all the
evidence in the light most favorable to the conviction to determine whether, based upon the
evidence and the reasonable inferences therefrom, a rational trier of fact could have found each
element of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.
Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); see also Brooks v. State, 323 S.W.3d 893, 899 (Tex.
Crim. App. 2010).
Analysis
       Appellant’s argument regarding the sufficiency of the evidence relies on the same
erroneous assertion that he was indicted in 2014, prior to the inclusion of XLR-11 in penalty
group 2-A. As stated above, it is evident from the record that Appellant’s indictment was filed
December 4, 2015. Thus, at the time of Appellant’s indictment, XLR-11 was classified by the
legislature as a penalty group 2-A substance. TEX. S.B. 173, 84th Leg., R.S. (2015) (current
version at TEX. HEALTH & SAFETY CODE ANN. § 481.1031).
       The health and safety code classifies the offense of possession of a controlled substance by
the particular penalty group to which the substance belongs. See TEX. HEALTH & SAFETY CODE
ANN. §§ 481.102–.105, 481.115–.118 (West 2017). In this case, Appellant was charged with an
offense pursuant to the Texas Penal Code, not the health and safety code. See TEX. PENAL CODE
ANN. § 38.11(d). Under section 38.11(d), it is a crime to possess any controlled substance in a



                                                  6
correctional facility. See id. The definition of a “controlled substance” includes substances in
either the schedules or the penalty groups. See TEX. HEALTH & SAFETY CODE ANN. § 481.002(5).
The definition does not require that the substance appear in both a schedule and a penalty group in
order to be considered a controlled substance.                    See id.   Therefore, the laws and decisions
pertaining to prosecutions under the health and safety code upon which Appellant relies are not
apposite. See Rodriguez, 2017 WL 1534044, at *4.
         At the time Appellant committed the offense of possession of XLR–11 in the Eastham
Unit, XLR–11 was listed as a temporary schedule I drug and was therefore was a controlled
substance. Effective September 1, 2015, XLR-11 was added to penalty group 2-A. TEX. S.B.
173, 84th Leg., R.S. (2015) (current version at TEX. HEALTH & SAFETY CODE ANN. § 481.1031).
Appellant was indicted on December 4, 2015 for the offense of possession of a prohibited
substance in a correctional facility, and subsequently, entered a plea of “guilty.” At his plea
hearing, he judicially confessed to the commission of the offense alleged in the indictment and
stated under oath that he had committed every element of the crime alleged. A stipulation of
evidence or judicial confession, standing alone, is sufficient to sustain a conviction upon a guilty
plea as long as it establishes each element of the charged offense. See Menefee v. State, 287
S.W.3d 9, 13 (Tex. Crim. App. 2009). Accordingly, viewing all the evidence in the light most
favorable to the conviction, we conclude that a rational fact-finder could have found Appellant
guilty of each element of possession of a controlled substance in a correctional facility. See
Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; see also Brooks, 323 S.W.3d at 899. Because the
evidence is legally sufficient to support Appellant’s conviction, we overrule Appellant’s second
issue.
                                                   DISPOSITION
         Having overruled Appellant’s two issues, we affirm the trial court’s judgment.

                                                                            JAMES T. WORTHEN
                                                                               Chief Justice


Opinion delivered September 20, 2017.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.



                                              (DO NOT PUBLISH)



                                                              7
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                        SEPTEMBER 20, 2017


                                         NO. 12-16-00236-CR


                                         ERIC D. NEIL,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                                Appeal from the 349th District Court
                         of Houston County, Texas (Tr.Ct.No. 15CR-197)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    James T. Worthen, Chief Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
