by Elaine Wolff
From the notification email:
Opinion No. GA-0622
Go to: http://www.oag.state.tx.us/opinions/opinions/50abbott/op/2008/htm/ga-0622.htm
Re: Whether persons operating or participating in a pilot needle- and syringe-exchange program 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)
Summary: In May of 2007, the Legislature authorized a pilot program in Bexar County "to prevent the spread of HIV, 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 id.
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.
Finally, any decision to prosecute program participants is a matter of prosecutorial discretion.