SAN ANTONIO (Map, News) - People who possess 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 involving three activists who passed out clean syringes to move forward.

The office released the opinion in response to a request from state Sen. Jeff Wentworth, R-San Antonio, who asked whether participants in a pilot needle-exchange program authorized in Bexar County would be subject to criminal prosecution.

"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.

Wentworth said he was disappointed in the opinion and that it was not the Legislature's intent for participants to be prosecuted.

"We're not in the business of passing bills that if people follow them they would be charged with a crime," Wentworth said.

He said the Legislature would have to clear up the problem during its next session.

The opinion also noted that a needle-exchange program is an optional part of the disease-prevention pilot program authorized in Bexar County by the Legislature in May 2007.

"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 ... because the Legislature did not except them from such prosecution," the opinion said.

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.

Bexar County District Attorney Susan Reed had warned local officials that the legislation doesn't shield participants from drug paraphernalia laws.

The opinion comes months after police said in January that they would seek drug paraphernalia charges against three activists who were handing out clean syringes in San Antonio.

The members of the nonprofit group Bexar Area Harm Reduction Coalition were cited in January when a police officer saw them parked at a corner "with several known prostitutes and drug addicts next to the vehicle." The defendants are Bill Day, a co-founder of the nonprofit group, and two board members, Mary Casey and Melissa Lujan.

Cliff Herberg, first assistant district attorney for Bexar County, said the case against the three, who could get up to a year in jail, will now move forward.

Herberg said Reed's office was waiting for the opinion, even though he said that because they were part of the nonprofit Day, Casey and Lujan "were never covered by this legislation anyway."

"Obviously if they change the law to allow this we will follow the law," Herberg said. "That's what this has always been about. We enforce the law as written."

Wentworth said his request for an opinion was due to Reed's warnings, not the case involving the nonprofit group.

Neel Lane, an attorney with Akin Gump Strauss Hauer & Feld, which is representing the coalition for free, 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."

Lane said Reed "has discretion not to charge these people" and that his clients will take their case to a jury if necessary.

Comments from Examiner Readers

8:54 AM MST on Fri., Apr. 25, 2008 re: "Needle swap programs to get funding boost"

DC Citizen said:
The needle exchange program is a legal way to encourage continued drug use. The money could have been better used in drug treatment and prevention programs. I for the life of me can't understand this logic, whats to prevent those receiving those needles to continue to share them with someone who maybe on that day stole or rob someone in order to obtain enough money to purchase his/her daily fix of illegal drugs. It is a known fact that a large percentage of drug user are unemployed, so my question to those misguided politicians who is supplying the drugs to these people? The last time I check illegal drugs and drug paraphernalia in this instance needles use for illegal drugs ingestion is still illegal in every state including the District of Columbia.

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7:08 AM MST on Thu., Dec. 27, 2007 re: "Federal bill clears way for DC to fund needle exchange"

Examiner Reader said:
This AIDS epidemic has conspiracy written all over it. And why doesnt the CDC report HIV and AIDS rates in the white community. Only time they do is when its a comparison to other ethnicities. You cant tell me otherwise because I have the stats in my face. If you can tell me where I can get that info, plese tell me. I've become very distrustful of government informational sources. And very distrustful of the government period, and I dont believe I am alone.

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7:44 PM MST on Wed., Dec. 26, 2007 re: "Federal bill clears way for DC to fund needle exchange"

Examiner Reader said:
This is rewarding criminal activity, It no longer pays to be a law abiding citizen!!

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7:37 PM MST on Wed., Dec. 26, 2007 re: "Federal bill clears way for DC to fund needle exchange"

Examiner Reader said:
Needles don't cause AIDS. Our decisions and behavior do. But lets keep trying to cure symptoms and not causes. We've done a bang job so far.

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7:18 PM MST on Wed., Dec. 26, 2007 re: "Federal bill clears way for DC to fund needle exchange"

The Undertaker said:
This will save lives and is another step in ending the failed war on drugs.

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