                               ATTORNEY GENERAL OF TEXAS
                                            GREG        ABBOTT




                                                  May 5, 2008



The Honorable Jeff Wentworth                           Opinion No. GA-0622
Chair, Jurisprudence Committee
Texas State Senate                                     Re: Whether persons operating or participating in
Post Office Box 12068                                  a pilot needle- and syringe-exchange program
Austin, Texas 78711-2068                               authorized for Bexar County by Government Code
                                                       section 531.0972 may be prosecuted for possessing
                                                       drug paraphernalia under Health and Safety Code
                                                       section 481.125 (RQ-0630-GA)

Dear Senator Wentworth:

        You ask:

                 whether the public health and Medicaid evaluation pilot program
                 authorized by law under Section 531.0972 of the Government Code,
                 effective September 1, 2007, ... now enables participants ofthe pilot
                 program . . . to carry out the mission of the program and the
                 Legislature's intent of preventing the spread of HIV, hepatitis Band
                 C, and other infectious and communicable diseases, without
                 subjecting these persons to criminal prosecution or the threat of
                 criminal prosecution in Texas under the Controlled Substances Act
                 of the Health and Safety Code. 1

See TEX. GOV'T CODE ANN. § 531.0972 (Vernon Supp. 2007); TEX. HEALTH & SAFETY CODE ANN.
§ 481.125 (Vernon 2003). You ask specifically whether persons participating in the Bexar County
pilot program-"those associated with its operations and those whom it would serve"-may be
prosecuted for possessing drug paraphernalia under the Texas Controlled Substances Act, Health and
Safety Code section 481.125. Request Letter, supra note 1, at 1; see ide at 1-2.

       Government Code section 531.0972 was adopted in 2007 as part of Senate Bill 10, to which
you refer as the "Omnibus Medicaid Bill." See Act of May 27, 2007, 80th Leg., R.S., ch. 268, § 5,
2007 Tex. Gen. Laws 500, 504; Request Letter, supra note 1, at 1. Section 531.0972 expressly


          1See Letter from Honorable JeffWentworth, Chair, Jurisprudence Committee, Texas State Senate, to Honorable

Greg Abbott, Attorney General of Texas, at 1-2 (Sept. 26,2007) (on file with the Opinion Committee, also available
at http://www.oag.state.tx.us) [hereinafter Request Letter].
The Honorable Jeff Wentworth - Page 2              (GA-0622)




permits the Texas Health and Human Services Commission (the "Commission") to guide Bexar
County's local health authority2 in establishing a disease-prevention pilot program-which may
include a needle- and syringe-exchange program:

                       The commission may provide guidance to the local health
               authority of Bexar County in establishing a pilot program funded by
               the county to prevent the spread of HIV, hepatitis B, hepatitis C, and
               other infectious and communicable diseases. The program may
               include a disease control program that provides for the anonymous
               exchange of used hypodermic needles and syringes.

TEX. GOV'T CODE ANN. § 531.0972 (Vernon Supp. 2007) (emphasis added); see also ide
§ 531.001(2) (Vernon 2004) (defining "commission").

        You question whether, should Bexar County elect to include such a needle- and syringe-
exchange program as a component ofits disease-prevention pilot program, those distributing as well
as those accepting and using the needles and syringes may be prosecuted under the Texas Controlled
Substances Act. See Request Letter, supra note 1, at 1-2; TEX. HEALTH & SAFETY CODE ANN.
§ 481.00 1 (Vernon 2003) (titled Texas Controlled Substances Act); see also TEX. HEALTH & SAFETY
CODE ANN. § 481.002(5) (Vernon Supp. 2007) (defining "controlled substance"). Under the Texas
Controlled Substances Act, the possession or delivery of drug paraphernalia, which includes "a
hypodermic syringe, needle, or other object used or intended for use in parenterally injecting a
controlled substance into the human body," is a criminal offense:

                       (a) A person commits an offense if the person knowingly or
               intentionally uses or possesses _with intent to use drug paraphernalia
               ... to inject ... into the human body a controlled substance in
               violation of this chapter.

                       (b) A person commits an offense ifthe person 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 inject ... into the human
               body a controlled substance in violation of this chapter.

                      (c) A person commits an offense if the person commits an
               offense under Subsection (b), is 18 years of age or older, and the
               person who receives or who is intended to receive the drug
               paraphernalia is younger than 18 years of age and at least three years
               younger than the actor.



       2Throughout this opinion, we refer to Bexar County's local health authority simply as Bexar County.
The Honorable Jeff Wentworth - Page 3          (GA-0622)




                     (d) An offense under Subsection (a)              IS   a Class C
               misdemeanor.

                      (e) An offense under Subsection (b) is a Class A
               misdemeanor, unless it is shown on the trial of a defendant that the
               defendant has previously been convicted under Subsection (b) or (c),
               in which event the offense is punishable by confinement in jail for a
               term of not more than one year or less than 90 days.

                       (f) An offense under Subsection (c) is a state jail felony.

TEX. HEALTH & SAFETY CODE ANN. § 481.125 (Vernon 2003); ide § 481.002(17)(K) (Vernon Supp.
2007) (defining "drug paraphernalia" to include a hypodermic needle); see also ide § 481.002(8), (38)
(defining "deliver" and "possession").

         You suggest that Government Code section 531.0972 on its face clearly and unambiguously
creates an exception to the Texas Controlled Substances Act such that individuals participating in
a Bexar County program may not be subject to prosecution under section 481.125. See Request
Letter, supra note 1, at 6. In the alternative, you suggest that, to the extent Government Code section
531.0972 is ambiguous on its face, the legislative intent behind the section requires us to construe
it to create an exception to the Texas Controlled Substances Act. See id.; see also TEX. GOV'T CODE
ANN. § 311.023(3) (Vernon 2005) (authorizing a court to consider a statute's legislative history
"whether or not the statute is considered ambiguous on its face"). As an additional alternative, you
suggest that, to the extent Government Code section 531.0972 and the Texas Controlled Substances
Act are inconsistent, section 531.0972 creates a specific exception to the more general Texas
Controlled Substances Act. See Request Letter, supra note 1, at 6; see also TEX. GOV'T CODE ANN.
§ 311.026(b) (Vernon 2005) (directing that where a general provision and a special or local provision
conflict irreconcilably, "the special or local provision prevails as an exception to the general
provision, unless the general provision is the later enactment and the manifest intent is that the
general provision prevail").

        First, we address your argument that Government Code section 531.0972 is inconsistent with
the Texas Controlled Substances Act. See Request Letter, supra note 1, at 6. We do not agree that
the provisions are inconsistent. On its face, the disease-prevention pilot program merely allows-it
does not require-Bexar County to implement a needle- and syringe-exchange program. The County
may, possibly assisted by advice from the Commission, implement a program to prevent the spread
of certain infectious and communicable diseases. TEX. GOV'T CODE ANN. § 531.0972 (Vernon
Supp.2007). That program may, in tum, include a needle- and syringe-exchange program. Id. Or
it may not. See ide ·The word "may" denotes discretion not to do something. Id. § 311.016(1)
(Vernon 2005) (stating that the word "'[m]ay' creates discretionary authority or grants permission
or a power"). Because the pilot program statute merely allows a pilot component that includes a
needle- and syringe-exchange program, it is not-on its face-inconsistent with the Texas
Controlled Substances Act.
The Honorable IeffWentworth - Page 4            (GA-0622)




        Similarly, because the statutes at issue are not inconsistent, we cannot agree that the mere
allowance ofa needle- and syringe-exchange program as part 6fthe disease-prevention pilot program
makes section 531.0972 a "clear and unambiguous" exception to Health and Safety Code section
481.125 such that individuals participating in a Bexar County program may not be subject to
prosecution under the Texas Controlled Substances Act. See Request Letter, supra note 1,at 6.
While Government Code section 531.0972 allows the establishment in Bexar County of a needle-
and syringe-exchange program as part of a pilot program to prevent the spread of certain infectious
or communicable diseases, nothing in Government Code chapter 531 or in the Texas Controlled
Substances Act expressly excepts from prosecution under the Texas Controlled Substances Act those
participating in a needle- and syringe-exchange program established under Government Code section
531.0972. See generally TEX. GOV'T CODE ANN. §§ 531.001-.604 (Vernon 2004 & Supp. 2007)
(providing for the Health and Human Services Commission); TEX. HEALTH & SAFETY CODE ANN.
§§ 481.001-.314 (Vernon 2003 & Supp. 2007) ("Texas Controlled Substances Act"). In other
words, neither code provision addresses the other in any fashion.

        Finally, we must reject the proposition that Government Code section 531.0972 is ambiguous
on its face. Rather, on its face, the provision simply permits the Commission to guide Bexar
County's local health authority in establishing a pilot program-which may include a needle- and
syringe-exchange component-to prevent the spread of certain diseases. TEX. GOV'T CODE ANN.
§ 531.0972 (Vernon Supp. 2007).

        Both Government Code section 531.0972 and the Texas Controlled Substances Act are clear
and not in conflict or inconsistent. Only if Bexar County elects to include a needle- and syringe-
exchange program as part of its disease prevention pilot program is there any potential conflict
between these provisions. In that event, we are faced with two possible constructions of section
531.0972: One interpretation is to conclude that, because the Legislature did not except participants
in the needle and syringe component ofthe program from the possibility ofprosecution under section
481.125, they are subject to the possibility of such prosecution. The alternative is to conclude that,
because the Legislature should not be presumed to have authorized the establishment of a portion
of a disease-prevention program that is effectively illegal under the Texas Controlled Substances
Act, section 531.0972 creates a special exception from the possibility of prosecution that applies to
individuals participating in the pilot program. To interpret the statute, we apply established rules of
statutory construction.

         In construing a statute, a court seeks to ascertain and effectuate the Legislature's intent. City
of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003); State ex reI. State Dep't of
Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002) (citing TEX. GOV'T CODE
ANN. § 312.005 (Vernon 1998)). A court looks first to the plain meaning of a statute's words. Bd.
ofAdjustment v. Wende, 92 S.W.3d 424,430 (Tex. 2002); see also Fleming Foods ofTex. , Inc. v.
Rylander, 6 S.W.3d 278, 284 (Tex. 1999) (stating that statutes should not be construed to mean
something other than what their plain words say unless there is an obvious error such as a
typographical one or if construing a statute according to its plain meaning would lead to an absurd
result); State v. Cowsert, 207 S.W.3d 347, 350 (Tex. Crim. App. 2006) (stating that a court focuses
attention on a statute's literal text and tries to discern the fair, objective meaning of that text at the
The Honorable Jeff Wentworth - Page 5           (GA-0622)




time of its enactment) (citing Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991)). More
significantly here, a court must presume that the Legislature adopted an enact~ent "with complete
knowledge of the existing law and with reference to it." Acker v. Tex. Water Comm 'n, 790 S.W.2d
299,301 (Tex. 1990) (citing McBride v. Clayton, 166 S.W.2d 125, 128 (Tex. 1942)). And a court
must presume that the Legislature chose every word of a statute for a purpose and excluded every
word that has been excluded for a purpose. Laidlaw Waste Sys. (Dallas), Inc. v. City ofWilmer, 904
S.W.2d 656, 659 (Tex. 1995) (quoting Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540
(Tex. 1981)).

         Given that we must presume that the Legislature adopted Government Code section 531.0972
with complete knowledge ofthe existence ofthe Texas Controlled Substances Act, we must presume
that it was aware of the possibility of criminal prosecution for participants in a needle- and syringe-
exchange program. Yet the Legislature did not provide any language excepting participants in Bexar
County's needle- and syringe-exchange program" from criminal prosecution under the Texas
Controlled Substances Act or any other Texas statute. We understand your argument that the
Legislature intended to create such an exception. Nevertheless, nothing in the plain language of
section 531.0972 establishes that exception. See generally TEX. GOV'T CODE ANN. § 531.0972
(Vernon Supp. 2007) (establishing pilot program). Nothing in the plain language of the Texas
Controlled Substances Act does so either. See generally TEX. HEALTH & SAFETY CODE ANN.
§§ 481.00 1-.314 (Vernon 2003 & Supp. 2007) ("Texas Controlled Substances Act"). It is not within
this office's normal province "to indulge in acts of legislation." Canal Ins. Co. v. Hopkins, 238
S.W.3d 549, 562 (Tex. App.-Tyler 2007, pet. denied) ("it is not within the judicial province to
indulge in acts of legislation"); cf Sanchez v. State, 182 S.W.3d 34, 41 (Tex. App.-San Antonio
2005) (stating that a court cannot assume the legislative prerogative by rewriting a statute), aff'd, 209
S.W.3d 117 (Tex. Crim. App. 2006). Instead, we must take the statutes as we find them and allow
the Legislature, if it wishes, to remedy any alleged defects. Cf Canal Ins. Co., 238 S.W.3d at 562
(stating that it is not for the courts to remedy defects or supply deficiencies in laws).

        Moreover, we find several instances in which the Legislature has adopted express exceptions
to the Texas Controlled Substances Act. For example, the Legislature has expressly stated that "[t]he
provisions of [the Texas Controlled Substances Act] relating to the possession and distribution of
peyote do not apply to the use of peyote by a member of the Native American Church in bona fide
religious ceremonies of the church." TEX. HEALTH & SAFETY CODE ANN. § 481.111(a) (Vernon
2003). Similarly, the Legislature has expressly excepted from specified provisions of the Texas
Controlled Substances Act a person who· "possesses or delivers ... drug paraphernalia to be used
to introduce tetrahydrocannabinols or their derivatives into the human body, for use in a federally
approved therapeutic research program." Id. § 481.111 (c). And section 481.062 lists a number of
persons who may possess a controlled substance without violating the Texas Controlled Substances
Act, including an agent of a registered manufacturer, distributor, or dispenser of the controlled
substance "acting in the usual course of business or employment"; "the ultimate user or a person in
possession of the controlled substance under" a lawful physician's order; and a law-enforcement
officer who is lawfully engaged in enforcing controlled-substance laws. Id. § 481.062(a)(I), (3), (4);
see also ide § 481.033 (excluding certain substances from the application of the Texas Controlled
Substances Act); ide § 481.062(a)(2), (5), (b) (exempting other specific persons from the Texas
The Honorable Jeff Wentworth - Page 6          (GA-0622)




Controlled Substances Act and authorizing the director of the Texas Department of Public Safety
to, by rule, waive registration requirements in certain circumstances); id § 481.0621(a) (excepting
from subchapter C of the Texas Controlled Substances Act "an educational or research program of
a school district or a public or private institution ofhigher education"); ide § 481.065 (exempting the
use of controlled substances used in medical research that is authorized by the Commissioner); ide
§§ 481.071, .072 (regarding the dispensation of controlled substances for valid medical purposes);
ide §§ 481.077(b), .124(f) (Vernon Supp. 2007) (allowing the director of the Texas Department of
Public Safety to exempt chemical precursors from the requirements of these sections if the director
determines that the precursors would not be dangerous or used in the illicit manufacture of drugs);
ide § 481.111 (b), (d) (Vernon 2003) (exempting from specified provisions of the Texas Controlled
Substances Act the possession of denatured sodium pentobarbital by personnel ofa humane society
or an animal control agency and the use of anabolic steroids administered to livestock or poultry);
cf ide §§ 481.122(b) (Vernon 2003), .123(a) (Vernon Supp. 2007) (creating affirmative defenses to
prosecution for a violation of the Texas Controlled Substances Act in certain circumstances). The
presence of these express exceptions to the Texas Controlled Substances Act indicates that the
Legislature knows how to create such an exception when it wishes to do so. It did not, however,
choose to create an exception here. See Office ofAtty Gen. v. Lee, 92 S.W.3d 526, 529 (Tex. 2002)
("every word excluded from a statute must ... be presumed to have been excluded for a purpose")
(quoting Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex. 1981)); see also Cameron,
618 S.W.2d at 540 (stating that if the Legislature intended for a particular statute to impose certain
restrictions, the Legislature could have done so; the fact that the Legislature did not do so suggests
that it intended not to do so).

         In enacting section 531.0972, the Legislature allowed the implementation of a pilot disease-
prevention program that, in tum, allows Bexar County to be advised by the Commission and allows
Bexar County to create a needle- and syringe-exchange program as part ofits disease prevention pilot
program. In contrast to other statutory provisions excepting certain possession and distribution of
controlled substances from prosecution under the Texas Controlled Substances Act, the Legislature
remained silent as to any such exception under Bexar County's pilot program. In light ofthe express
exceptions to the Texas Controlled Substances Act and the fact that the disease prevention pilot
program may be implemented without including a needle- and syringe-exchange program, we do not
construe the Legislature's silence as intent to except the needle- and syringe-exchange component,
if any, from prosecution.

         Additionally, while you suggest that an exception from prosecution under the Texas
Controlled Substances Act is required to give effect to the language of section 531.0972 allowing
a needle- and syringe-exchange program as part ofa disease-prevention program, such an exception
is not required in order to allow the needle- and syringe-exchange component to proceed. First, the
lack of an express exception from criminal prosecution does not foreclose the Commission's
authority to provide guidance to Bexar County in the establishment of a needle- and syringe-
exchange component as part of its disease-prevention pilot program. Second, assuming that after
such guidance Bexar County includes the exchange program as part of its disease prevention
program, the possibility remains that prosecutorial discretion may be exercised in evaluating the facts
and evidence of possession of drug paraphernalia to determine whether a criminal violation of the
The Honorable Jeff Wentworth - Page 7          (GA-0622)




Texas Controlled Substances Act has occurred. See Hardwick v. Doolittle, 558 F.2d 292, 301 (5th
eire 1977) (recognizing "a broad ambit to prosecutorial discretion"); United States v. Cox, 342 F.2d
167, 171 (5th Cir. 1965) (indicating that a prosecutor has discretion to determine "whether a
prosecution shall be commenced or maintained" and that courts are not to interfere with a
prosecutor's free exercise of discretion); see also TEX. CODE CRIM. PROC. ANN. art. 2.01 (Vernon
2005) ("It shall be the primary duty of all prosecuting attorneys, including any special prosecutors,
not to convict, but to see that justice is done."). Third, participants who reasonably believe their
conduct is "required or authorized to assist a public servant in the performance of his official duty"
may raise that justification in any prosecution brought against them. TEX. PENAL CODE ANN.
§ 9.21(a), (d)(2) (Vernon 2003).

        It also should be noted that even if Government Code section 531.0972 were construed as
an exception to prosecution under the Texas Controlled Substances Act, participants in a needle- and
syringe-exchange program could possibly be subject to prosecution under other laws. By way of
example only, if an adult participant in such an exchange program conspires to dispense a needle or
syringe to a minor who is at least three years younger than the adult, the adult may be prosecuted
for criminal conspiracy. See ide § 15.02 (stating that a person criminally conspires if with intent to
commit a felony he agrees to commit a felony and performs an overt act in pursuance of the
agreement); see also TEX. HEALTH & SAFETY CODE ANN. § 481.125(c) (stating that an adult
commits a felony who dispenses drug paraphernalia to a person under 18 and at least three years
younger than tlte adult). Further, under the Federal Controlled Substances Act, it is illegal to sell,
transport, import, or export drug paraphernalia. 21 U.S.C. § 863(a) (2000); see also ide § 863(d)
(defining "drug paraphernalia" as equipment of any kind designed or intended to be used for
injecting controlled substances into the human body). If two or more participants in a needle- and
syringe-exchange program distribute drug paraphernalia, their actions may constitute federal criminal
conspiracy. See 18 U.S.C. § 371 (2000). If a participant in the exchange attempted or conspired to
distribute drug paraphernalia, his actions may also constitute a crime under the Federal Controlled
Substances Act. See 21 U.S.C. § 846 (2000).

        We thus conclude that neither Government Code section 531.0972 nor the Texas Controlled
Substances Act excepts from prosecution persons who possess drug paraphernalia while participating
in a pilot needle- and syringe-exchange program authorized for Bexar County. Participants in the
program may, in the discretion of the prosecutor, be prosecuted under the Texas Controlled
Substances Act.
The Honorable Jeff Wentworth - Page 8      (GA-0622)



                                    SUMMARY

                    In May of2007, the Legislature authorized a pilot program in
             Bexar County "to prevent the spread ofHIV, hepatitis B, hepatitis C,
             and other infectious and communicable diseases." TEX. GOV'T CODE
             ANN. § 531.0972 (Vernon Supp. 2007). The legislation provided that
             the Health and Human Services Commission "may provide guidance"
             to Bexar County in establishing such a program. Id. (emphasis
             added). The statute also allowed Bexar County to include in its pilot
             program a needle- and syringe-exchange program. See ide

                    The Texas Controlled Substances Act provides that
             possession or delivery of drug paraphernalia-including "a
             hypodermic syringe, needle, or other object used or intended for use
             in parenterally injecting a controlled substance into the human
             body"-is an offense that subjects a person to criminal prosecution.
             TEX. HEALTH & SAFETY CODE ANN. § 481.002(17)(K) (Vernon
             Supp.2007).

                     Because a needle and syringe exchange is an optional
             component of Bexar County's pilot disease-prevention program, the
             program need not include a needle- and syringe-exchange component.
             If Bexar County's pilot disease-prevention program does not include
             a needle and syringe exchange, a person would not be subject to
             prosecution under section 481.125 of the Health & Safety Code for
             participating in the program. If, however, Bexar County elects to
             include such a needle- and syringe-exchange program as part of this
             overall disease-prevention program, the participants in that program
             appear to be subject to prosecution under the Texas Controlled
             Substances Act because the Legislature did not except them from
             such prosecution.

                     In contrast to the Bexar County pilot-program statute, the
             Legislature has, in numerous statutes, adopted express language that
             excludes certain activities from criminal prosecution under the Texas
             Controlled Substances Act. Because the Legislature has expressly
             demonstrated its ability and willingness to exclude otherwise criminal
             acts from prosecution under the Texas Controlled Substances
             Act-but did not do so here-this office can neither assume nor
             legislate such an intent.

                    Additionally, even if the participants are not subject to
             prosecution under the Texas Controlled Substances Act, participants
             may face criminal charges under other Texas or federal statutes.
The Honorable Jeff Wentworth - Page 9       (GA-0622)



                     Finally, any decision to prosecute program participants is a
              matter of prosecutorial discretion.




KENT C. SULLIVAN
First Assistant Attorney General

ANDREW WEBER
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee
