Opinion issued January 29, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00031-CR
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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
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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,
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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).
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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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