Texas AG Abbott issues opinion allowing prosecution of people involved in Bexar County needle-exchange program

Texas Attorney General Greg Abbott (R) on Monday issued an opinion saying that three advocates involved in an effort to launch a needle-exchange program in Bexar County, Texas, "appear to be subject to prosecution" for possession of drug paraphernalia, the Austin American-Statesman reports (MacLaggan, Austin American-Statesman, 5/6).

The opinion means that Bexar County officials will not move forward with the planned needle-exchange program, which would have been the first in Texas, the San Antonio Express-News reports (Allen/Finley, San Antonio Express-News, 5/6).

The Texas House in May 2007 voted 71-60 to approve a provision in a Medicaid bill (SB 10) that would have established the needle-exchange program in Bexar County, which includes San Antonio. State Rep. Ruth McClendon (D), who sponsored the provision, initially tried to add an amendment that would have created a statewide program. However, the program was limited to the San Antonio area after the broader program failed to gain support in the House.

The Bexar County Commissioners Court in August 2007 unanimously voted to move forward with a pilot initiative to establish the program. The court voted to approve spending $60,000 for a staff position and planning costs for the program. Following the vote from the County Commissioner's Court, Bexar County District Attorney Susan Reed said that the law authorizing the exchange program was faulty and that she would not hesitate to prosecute anyone who distributes needles before the program is approved by county health officials (Kaiser Daily HIV/AIDS Report, 1/29).

Three people with the Bexar Area Harm Reduction Coalition were charged in February for possession of drug paraphernalia, and Abbott's opinion allows prosecutors to move forward in the case (Austin American-Statesman, 5/6). Abbott in the opinion left the prosecution of the three people up to Reed's discretion. "Participants in the program may, in the discretion of the prosecutor, be prosecuted under the Texas Controlled Substances Act," the opinion said (White, AP/Google.com, 5/5). Police have refiled the charges as a Class A misdemeanor, which carries a punishment of up to one year in jail and a $4,000 fine (San Antonio Express-News, 5/6).

Texas is the only state nationwide that does not allow needle-exchange programs, according to state Sen. Bob Deuell (R), who co-sponsored the original provision with McClendon. Deuell and McClendon both have said that they plan to reintroduce the legislation in 2009 (Austin American-Statesman, 5/6).

Aurora Sanchez -- Bexar County executive director of community and development programs, who supervised the exchange program -- said the county will continue to provide educational materials to injection drug users to prevent the spread of HIV and other bloodborne diseases (San Antonio Express-News, 5/6).

Reaction

Neel Lane, an attorney representing the coalition, said Abbott "reached an absurd conclusion ... that the Legislature somehow may have intended to criminalize the conduct of the people who carried out" the needle-exchange program (AP/Google.com, 5/5). He added that the "practical effect" of the opinion is that Reed "has the discretion to veto laws passed by the Legislature" and signed by the governor.

Cliff Herberg, first assistant district attorney for Bexar County, said the legislation "was faulty from the beginning" and "left open the possibility that needles would be distributed to underage kids." Herberg added that the Legislature "clearly didn't intend to create this program."

Sanchez said, "We were hoping the attorney general would see the value of operating the sterile needle exchange in toto, which included the distribution of sterile needles." She added, "But since it doesn't do that, it appears to me we have to wait until the legislation is changed in 2009" (San Antonio Express-News, 5/6).

State Sen. Jeff Wentworth (R), who asked the attorney general's office for its opinion, said that it is not the Legislature's intent for participants to be prosecuted and that lawmakers should address any problems with the legislation. "We're not in the business of passing bills that if people follow them, they would be charged with a crime," he said (AP/Google.com, 5/5).