Detention Center found 60 Darvocet missing from the medicine cabinet. LVN was questioned and admitted to taking the pills and gave a written statement. In the statement, she said that she used all the pills herself. I looked in the Penal Code and the Health and Safety Code and didn't find an offense I thought would work. Any help would be appreciated.

Drug Diversion.

Look at 481.129: Fraud.
I like (a)(5) for your facts. There's good language provided in your TDCAA charging manual.

Go with "subterfuge" or "deception" depending on whether she simply took them or had to do some confidence scam to get them.

If you don't find something you like, I can email you a few different ways we've indicted similar facts.

If you need a copy of the Dept of Health's current Schedules I-V (effective 1/1/04), let me know and I will e-mail the pdf copy to you. They are not in Chapter 481. Depending on which "Darvocet" type you are talking about (there are three), the pills either contained acetimenophen and codeine or acetimenophen and propoxyphene (also a narcotic). A pharmacist could tell you how many grains of each per tablet. You will need to know under which schedule and penalty group Darvocet belongs. If it isn't a "controlled substance" under chapter 481 because it's not listed in the schedules or penalty groups but requires a prescription, then it's a "dangerous drug" under chapter 483 and there is an offense for unauthorized possession of a dangerous drug.

Janette Ansolabehere
Senior Assistant General Counsel
DPS
512-424-2890 x 2345

Mr. Ray it looks like 481.129(a)(5) is the way to go. I knew there was a better charge in this case than PC 38.11. If you would e-mail me a couple of the indictments to luke@wtconnect.com I would appreciate it.

I'll send those off today, as long as you don't call me Mr. anymore. Around these parts I'm Philip or Phil.

The only person around here that goes by Mr. is John Bradley.

I sent the email, but I'm going to post them here to see if other prosecutors have a comment. I'm curious if after the to-wit do you need to restate "the defendant did ..." or can you begin with the descriptive phrase rather than a complete sentence.

Our bad guy in this case did a number of things to siphon off drugs from a nursing home while she was a nurse there.

1. did then and there knowingly obtain a controlled substance, namely Hydrocodone by subterfuge, to-wit: by withdrawing a dose of medication and replacing the quatity with an unknown fluid. (turns out it was saline, fyi)

She injected herself while on duty by dosing under her tongue. (gross, huh?)

2. did then and there knowingly obtain a controlled substance, namely, Zoplidem Tartrate, by subterfuge, to-wit: pretending to administer medication to a patient who was not at the facility.

She pocketed the pills of ambien after signing the sheet showing she was giving them to a patient who had already been moved to the hospital. We did a separate charge for the Alprazolam (Xanax) that was taken at the same time.

3. did then and there knowingly obtain a controlled substance, namely, Alprazolam, by subterfuge, to-wit: Removing medication from one bottle and replacing it with another unknown medication. (turns out it was blood pressure meds.)

[This message was edited by Philip D Ray on 12-15-04 at .]

I have to correct my previous post, upon further review, I believe he's 'Dr. Bradley', if you read down the forums, you'll see the discussion.