Attorney General Abbott’s opinion killing the proposed needle exchange pilot program for Bexar County could have gone either way. This would never have become an issue had not Bexar County DA Susan Reed announced that she would prosecute participants in the program for violating the Texas Controlled Substances Act. Why a DA would want to eviscerate a program that would save lives and taxpayers’ money (because HIV and hepatitis are transmitted by nonsterile needles) is beyond me. What public interest was served by Reed’s decision other than her own political interest? San Antonio state senator Jeff Wentworth, who requested the opinion, argued, reasonably enough, that the pilot program created an exception to the Texas Controlled Substances Act (TCSA). Abbott disagreed. “[W]e find several instances in which the Legislature has adopted express exceptions to the [TCSA],” the opinion says (for example, the use of peyote by a member of the Native American Church),…. “The presence of these express exceptions to the [TCSA] 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.” The language of the AG’s opinion concedes that this is a close decision. “One interpretation is to conclude that, because the Legislature did not exempt participants in the needle and syringe component of the program from the possibility of prosecution … 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 establishing of a portion of a disease-prevention program that is effectively illegal under the Texas Controlled Substances Act, the statute creates a special exception from the possibility of prosecution under the [TCSA].” To my way of thinking, it is so much more logical to conclude that the Legislature did not intend to establish a program that subjects anonymous drug users and county health officials to prosecution. The whole idea of the program is to save lives. As Wentworth said to me, “Clearly, the Legislature did not intend to create criminals by having this program in Bexar County.” Instead, Abbott chose to cloak his decision in the eccentricities of the principles of statutory construction. People will die and medical costs will rise as a result.
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