Opinion issued January 29, 2015




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                              NO. 01-14-00031-CR
                            ———————————
                     JOSHUA J. HOLLOWAY, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee


                   On Appeal from the 182nd District Court
                           Harris County, Texas
                       Trial Court Case No. 1366751


                          MEMORANDUM OPINION

      Appellant Joshua J. Holloway pleaded guilty to attempting to obtain a

controlled substance, hydrocodone, through use of a fraudulent prescription, after

the trial court denied his motion to quash the indictment based upon the doctrine of

in pari materia. See TEX. HEALTH & SAFETY CODE ANN. § 481.129(a)(5)(B) (West
Supp. 2014). Holloway argues that the trial court erred in refusing to quash the

indictment because the State improperly charged him under the Texas Controlled

Substances Act, see generally TEX. HEALTH & SAFETY CODE ANN. ch. 481 (West

2010 & Supp. 2014), instead of the Texas Dangerous Drug Act, see generally TEX.

HEALTH & SAFETY CODE ANN. ch. 483 (West 2010 & Supp. 2014), which carries a

lower penalty. We affirm.

                                  Background

      In September 2012, Holloway presented a prescription for 150 units of

Lortab (hydrocodone) to a pharmacist at a Walgreens in Baytown, Texas. The

prescription purported to be authorized by Mansour R. Sanjar, M.D., but the

pharmacist observed that the authorizing signature was not consistent with Sanjar’s

previous signatures.    She contacted Sanjar and learned that Sanjar had not

authorized the prescription.

      Holloway was charged with attempting to obtain a controlled substance,

hydrocodone, through use of a fraudulent prescription, a third-degree felony. See

TEX. HEALTH & SAFETY CODE ANN. § 481.129(a)(5)(B), (d)(2) (West Supp. 2014).

Holloway moved to quash the indictment based upon the doctrine of in pari

materia. He argued that he should have been charged with a misdemeanor under

Section 483.045 of the Dangerous Drug Act, instead of a felony under Section

481.129 of the Controlled Substances Act. He argued that both statutes prohibited



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attempting to procure hydrocodone by fraudulent prescription, but that the

Dangerous Drug Act was more specific, and therefore the State was required to

charge him under it.

        At the hearing on the motion to quash, the State responded that hydrocodone

is covered only under the Controlled Substances Act. The trial court denied the

motion to quash, and Holloway pleaded guilty to attempting to obtain a controlled

substance by fraudulent prescription and true to two enhancement paragraphs. The

trial court accepted Holloway’s guilty plea, found the enhancements true, and

sentenced Holloway to six years’ confinement, deferred for six years, and a $500

fine.

                                    Discussion

        In his sole point of error, Holloway contends that the trial court erred by

denying his motion to quash the indictment based upon the doctrine of in pari

materia.     Holloway contends that he should have been charged under the

Dangerous Drug Act, see TEX. HEALTH & SAFETY CODE ANN. § 483.045 (West

2010), rather than the Controlled Substances Act, see TEX. HEALTH & SAFETY

CODE ANN. § 481.129.

A.      Standard of Review

        We review the denial of a motion to quash an indictment de novo. Lawrence

v. State, 240 S.W.3d 912, 915 (Tex. Crim. App. 2007). “The doctrine of in pari



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materia is a rule of statutory construction that seeks to carry out the Legislature’s

intent.” Jones v. State, 396 S.W.3d 558, 561 (Tex. Crim. App. 2013). Statutes are

in pari materia when they “deal with the same general subject, have the same

general purpose, or relate to the same person or thing or class of persons and

things.” Id. (quoting Azeez v. State, 248 S.W.3d 182, 191 (Tex. Crim. App. 2008)).

A list of four non-exclusive factors may be considered in determining whether the

statutes are in pari materia, namely, whether the statutes: (1) involve different

penalties; (2) are contained in the same legislative act; (3) require the same

elements of proof; and (4) were intended to achieve the same purpose or objective.

Burke v. State, 28 S.W.3d 545, 547 (Tex. Crim. App. 2000) (quoting Alejos v.

State, 555 S.W.2d 444, 449 (Tex. Crim. App. 1977) (op. on reh’g)). “Similarity of

purpose or object is the most important factor in assessing whether two provisions

are in pari materia.” Id.

      When two statutes are in pari materia, the doctrine requires that the statutes

be “taken, read, and construed together, each enactment in reference to the other,

as though they were parts of one and the same law.” Jones, 396 S.W.3d at 561

(quoting Azeez, 248 S.W.3d at 192). “To that end, ‘[a]ny conflict between their

provisions will be harmonized, if possible, and effect will be given to all the

provisions of each act if they can be made to stand together and have concurrent

efficacy.’” Id. at 561–62 (quoting Azeez, 248 S.W.3d at 192); see also TEX. GOV’T



                                         4
CODE ANN. § 311.026(a) (West 2013) (if general provision conflicts with special

provision, they shall be construed so that effect is given to both if possible).

“Where such statutes irreconcilably conflict, however, ‘the more detailed

enactment . . . will prevail, regardless of whether it was passed prior to or

subsequently to the general statute, unless it appears that the legislature intended to

make the general act controlling.’” Jones, 396 S.W.3d at 562 (quoting Azeez, 248

S.W.3d at 192); see also TEX. GOV’T CODE ANN. § 311.026(b) (West 2013) (if

provisions irreconcilably conflict, special provision prevails unless general

provision is later enactment and the manifest intent is that the general provision

prevail). “Further, such conflict implicates due process rights that require the State

to prosecute the defendant under the special statute where two statutes are in pari

materia.” Jones, 396 S.W.3d at 562 (citing Ex parte Smith, 185 S.W.3d 887, 892

(Tex. Crim. App. 2006)).

B.    Applicable Law

      1.     Controlled Substances Act

      A “controlled substance” means “a substance, including a drug, an

adulterant, and a dilutant, listed in Schedules I through V or Penalty Groups 1, 1-

A, or 2 through 4” of the Health and Safety Code. TEX. HEALTH & SAFETY CODE

ANN. § 481.002(5) (West Supp. 2014). “Controlled substances listed in Schedules

I through V and Penalty Groups 1 through 4 are included by whatever official,



                                          5
common, usual, chemical, or trade name they may be designated.” Id. § 481.031

(West 2010). Hydrocodone is listed under Penalty Groups 1 and 3, and was listed

under Schedule III at the time of Holloway’s conviction. 1 See TEX. HEALTH &

SAFETY CODE ANN. § 481.102(3)(A) (West 2010) (Penalty Group 1 includes

“hydrocodone not listed in Penalty Group 3”); § 481.104(a)(4) (West Supp. 2014)

(Penalty Group 3 includes “a material, compound,           mixture, or preparation

containing . . . not more than 300 milligrams of dihydrocodeinone (hydrocodone),

or any of its salt,” in certain formats); § 481.032 (West Supp. 2013) (hydrocodone

is Schedule III drug; effective before October 2014).

      As applicable here, a person commits an offense under the Controlled

Substances Act if he knowingly attempts to possess or obtain a controlled

substance through use of a fraudulent prescription form. TEX. HEALTH & SAFETY

CODE ANN. § 481.129(a)(5)(B).       This offense is a third-degree felony if the

substance is listed in Schedule III of the Health & Safety Code. Id. § 481.129(d).

      2.    Dangerous Drug Act

      “‘Dangerous drug’ means a device or a drug that is unsafe for self-

medication and that is not included in Schedules I through V or Penalty Groups 1

through 4 of Chapter 481 (Texas Controlled Substances Act).” TEX. HEALTH &


1
      Effective October 2014, hydrocodone became a Schedule II drug. See TEX.
      HEALTH & SAFETY CODE ANN. § 481.032 (West Supp. 2014) (hydrocodone is
      Schedule II drug).

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SAFETY CODE ANN. § 483.001(2) (West Supp. 2014).         A person commits an

offense under the Dangerous Drug Act if the person, among other things, “obtains

or attempts to obtain a dangerous drug by using a forged, fictitious, or altered

prescription.”   Id. § 483.045(a)(3) (West 2010).   This offense is a Class B

misdemeanor unless the defendant has previously been convicted of an offense

under the Dangerous Drug Act, in which event the offense is a Class A

misdemeanor. Id. § 483.045(b) (West 2010).

C.    Analysis

      We conclude that Section 483.045 of the Dangerous Drug Act and Section

481.129 of the Controlled Substances Act are not in pari materia as Holloway

argues. The Legislature explicitly stated that “dangerous drugs” governed by the

Dangerous Drug Act include only drugs “not included in Schedules I through V or

Penalty Groups 1 through 4 of Chapter 481,” the Controlled Substances Act. TEX.

HEALTH & SAFETY CODE ANN. § 483.001(2). Hydrocodone is included in Penalty

Groups 1 and 3 of the Controlled Substances Act, and was included on Schedule

III at the time of Holloway’s conviction. See TEX. HEALTH & SAFETY CODE ANN.

§§ 481.102(3)(A), 481.104(a)(4) & 481.032 (West Supp. 2013).              Thus,

hydrocodone is not a “dangerous drug” covered by the Dangerous Drug Act. See

TEX. HEALTH & SAFETY CODE ANN. §§ 483.001(2), 481.102(a)(3)(A),

481.104(a)(4) & 481.032 (West Supp. 2013).



                                       7
      Because the State could not have properly charged Holloway under the

Dangerous Drug Act, we reject Holloway’s contention that the two statutes are in

pari materia, and we hold that the trial court did not err in denying Holloway’s

motion to quash the indictment. See Hollin v. State, 227 S.W.3d 117, 122 (Tex.

App.—Houston [1st Dist.] 2006, pet. ref’d) (because statutes were not in pari

materia, trial court did not err in denying motion to quash indictment).

                                    Conclusion

      We affirm the trial court’s judgment.




                                               Rebeca Huddle
                                               Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).




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