Those in possession of drug paraphernalia as part of a needle-exchange program can be prosecuted, the Texas Attorney General's Office said Monday, clearing the way for a case against three activists who passed out clean syringes.
"Participants in the program may, in the discretion of the prosecutor, be prosecuted under the Texas Controlled Substances Act," read the opinion signed by Attorney General Greg Abbott.
Texas is the only state that doesn't allow syringe exchange programs, which are meant to curb the spread of diseases like hepatitis and HIV among intravenous drug users.
Three members of a pilot needle-exchange program adopted in Bexar County, the Bexar Area Harm Reduction Coalition, were charged in February with possessing drug paraphernalia.
Bexar County District Attorney Susan Reed had warned local officials that legislation authorizing the program wouldn't shield participants from drug paraphernalia laws.
Possible jail time
State Sen. Jeff Wentworth, who asked the state Attorney General's Office for its opinion about whether the needle-exchange program participants would be subject to criminal prosecution, said it was not the Legislature's intent for participants to be prosecuted and that lawmakers would have to fix the problem.
"We're not in the business of passing bills that if people follow them they would be charged with a crime," he said.
Cliff Herberg, first assistant district attorney for Bexar County, said the case against the workers — Bill Day, Mary Casey and Melissa Lujan — will move forward. Each could get up to a year in jail if convicted.
Neel Lane, an attorney for the coalition, said the opinion "reached an absurd conclusion ... that the Legislature somehow may have intended to criminalize the conduct of the people who carried out the program."
He said Reed "has discretion not to charge these people" and that his clients will take their case to a jury if necessary.