Texas Health & Safety Code Offenses 481.122 – Delivery of Controlled Substance or Marihuana to Child *new definition of marijuana as of September 1, 2019

WHAT IS DELIVERY OF CONTROLLED SUBSTANCE OR MARIHUANA TO CHILD IN TEXAS?

The Texas law against delivery of a controlled substance or marihuana to a child prohibits giving, selling, or otherwise transferring any controlled substance or marijuana to a person under 18 years of age.

• What is a controlled substance? Texas Health and Safety Code Section 481.002 defines a “controlled substance” as a substance, including a drug, listed in Schedules I through V or Penalty Group 1, 1-A, 1-B, 2, 2-A, 3, or 4. The term includes the aggregate weight of any mixture, solution, or other substance containing a controlled substance, but does not include “hemp” as defined by Texas Agriculture Code Section 121.001, or the tetrahydrocannabinols in hemp.

• What is the difference between Schedules I, II, III, IV, and V and the penalty groups of controlled substances? Controlled substances are divided into five “schedules” based on potential for abuse or addiction, which dictate the rules medical professionals must follow in prescribing medications listed in each schedule. Schedule I, for example, are the most addictive substances, and may generally not be prescribed. Substances in Schedule I are also typically in Penalty Group 1, and are considered illegal under most circumstances.Controlled substances are divided into “penalty groups” for determining criminal classification and penalties.

• What is the definition of marihuana or marijuana in Texas? Texas Health and Safety Code Section 482.002 defines “marihuana” as the plant Cannabis sativa L., whether growing or not, the seeds of that plant, and every compound, manufacture, salt, derivative, mixture, or preparation of the resin. The term does not include “hemp” as defined by Texas Agriculture Code Section 121.001 (delta-9 THC concentration of 0.3% or more), or the tetrahydrocannabinols in hemp.Tetrahydrocannabinol with a delta-9 THC concentration of more than .3%, such as “vape” pens or cartridges, is a controlled substance in Penalty Group 2.

• Is medical marijuana/marihuana legal in Texas? Yes. Texas Health and Safety Code Chapter 487, known as the Texas Compassionate-Use Act, provides the licensing requirements to obtain medical marijuana.Texas Health and Safety Code Section 481.111 also contains an exemption for a person accused of manufacturing, delivering, or possessing with intent to deliver tetrahydrocannabinols or their derivatives if the person is participating in or manufacturing the tetrahydrocannabinols for use in a federally approved therapeutic research program.

WHAT IS THE DELIVERY OF CONTROLLED SUBSTANCE OR MARIHUANA TO CHILD LAW IN TEXAS?

Tex. Health & Safety Code § 481.122. OFFENSE: DELIVERY OF CONTROLLED SUBSTANCE OR MARIHUANA TO CHILD.

(a) A person commits an offense if the person knowingly delivers a controlled substance listed in Penalty Group 1, 1-A, 1-B, 2, or 3 or knowingly delivers marihuana and the person delivers the controlled substance or marihuana to a person:

(1) who is a child;

(2) who is enrolled in a public or private primary or secondary school; or

(3) who the actor knows or believes intends to deliver the controlled substance or marihuana to a person described by Subdivision (1) or (2).

(b) It is an affirmative defense to prosecution under this section that:

(1) the actor was a child when the offense was committed; or

(2) the actor:

(A) was younger than 21 years of age when the offense was committed;

(B) delivered only marihuana in an amount equal to or less than one-fourth ounce; and

(C) did not receive remuneration for the delivery.

(c) An offense under this section is a felony of the second degree.

. . .

(e) If conduct that is an offense under this section is also an offense under another section of this chapter, the actor may be prosecuted under either section or both.

Tex. Health & Safety Code § 481.123. DEFENSE TO PROSECUTION FOR OFFENSE INVOLVING CONTROLLED SUBSTANCE ANALOGUE.

(a) It is an affirmative defense to the prosecution of an offense under this subchapter involving the manufacture, delivery, or possession of a controlled substance analogue that the analogue:

(1) was a substance for which there is an approved new drug application under Section 505 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Section 355); or

(2) was a substance for which an exemption for investigational use has been granted under Section 505 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Section 355), if the actor’s conduct with respect to the substance is in accord with the exemption.

WHAT IS THE PENALTY CLASS FOR DELIVERY OF CONTROLLED SUBSTANCE OR MARIHUANA TO CHILD IN TEXAS?

Delivery of a controlled substance or marihuana to a child is a second degree felony, punishable by two to 20 years in prison.

WHAT IS THE PUNISHMENT RANGE FOR DELIVERY OF CONTROLLED SUBSTANCE OR MARIHUANA TO CHILD IN TEXAS?

The punishment range for delivery of a controlled substance or marihuana to a child, a second degree felony, is two to 20 years in prison, and a maximum $10,000 fine.

WHAT ARE THE PENALTIES FOR DELIVERY OF CONTROLLED SUBSTANCE OR MARIHUANA TO CHILD IN TEXAS?

A person charged with delivery of a controlled substance or marihuana to a child may be eligible for probation after a conviction, or deferred adjudication without a conviction, for a period not to exceed ten years.

WHAT ARE THE DEFENSES TO DELIVERY OF CONTROLLED SUBSTANCE OR MARIHUANA TO CHILD IN TEXAS?

The statute authorizes an affirmative defense to delivery of a controlled substance or marihuana to a child if the accused was also under 18 at the time of the offense, or was under 21 and delivered less than a quarter-ounce for no money or other consideration in return.

Texas Health and Safety Code Section 481.123 provides a defense to a person charged with manufacturing, delivering, or possessing a controlled substance if the substance was approved as a new drug by the FDA, or was exempt by the FDA for investigational use.

• Is a lab test required for drug cases in Texas? Generally, yes, even in marijuana cases. A person should not be convicted of possessing, manufacturing, or delivering a controlled substance in a specifically alleged penalty group without a lab report verifying the drug was the controlled substance alleged.In Ex parte Saucedo, the defendant was indicted for possession of methamphetamine, a controlled substance in Penalty Group 1. He pled before the lab results were sent to the prosecution, and was sentenced. The lab report revealed the defendant was actually in possession of methylethcathinone, a substance in Penalty Group 2. The Court of Criminal Appeals granted habeas relief, and cautioned all trial attorneys and defendants against pleading without all the evidence.

  In Johnson v. State, the defendant was stopped for a defective tail light, and was arrested for outstanding warrants. He had marijuana in his pocket, and was charged with possession of less than two ounces. At trial, a lab chemist testified he subjected the marijuana buds to gas chromatography testing which determined that the delta 9 THC levels were sufficient for the plant material to be classified as marijuana and not hemp under Texas law. The defendant was convicted, and the appellate court affirmed.

• What is drug possession in Texas? Yes. Texas Health and Safety Code Section 481.002 defines “possession” as actual care, custody, control, or management. Possession does not require proof a person is physically holding the controlled substance.In Rodriguez v. State, No. 04-21-00503-CR, the defendant’s girlfriend let her friend drive the defendant to the store. Police stopped the car while the defendant was in the passenger seat, and found 0.18 grams of methamphetamine in a chewing tobacco tin in the glove box. The officer noticed tobacco around the defendant’s mouth, so he was charged with and convicted of possession of less than a gram of a controlled substance in Penalty Group 1.

  The appellate court affirmed. The drugs were conveniently accessible to the defendant on his side of the car, they were in a tobacco tin, and the defendant chewed tobacco.

• What is a search incident to arrest in Texas? The Fourth Amendment to the U.S. Constitution permits police officers to conduct warrantless searches incident to lawful arrests. The justification for permitting such a warrantless search is: (1) the need for officers to seize weapons or other things which might be used to assault an officer or effect an escape; and (2) the need to prevent the loss or destruction of evidence. See State v. Granville, 423 S.W.3d 399, 410 (Tex. Crim. App. 2014).In State v. Sanchez, an officer approached the defendant’s jeep, which was parked in a grassy area next to a bar with the driver’s door open, the engine turned off, and the defendant was asleep in the driver’s seat. The officer woke the defendant up to check on him, and learned he had traffic warrants. Incident to arrest, the officer searched the defendant’s pockets, and he had cocaine. He was then arrested for possession of a controlled substance in PG 1, his car was searched incident to that arrest, and more cocaine was found. The appellate court upheld the car search as a valid search incident to his arrest for possession.

  In Botello v. State, police responded to an assault-in-progress. The officer spoke to the victim outside the home, who said the defendant was her estranged husband, had assaulted her, and was still inside. The defendant refused to come out, but the victim consented to a search of the home, so police forcefully went inside. Officers immediately arrested the defendant for assault, searched his pockets, and found over 24 grams of heroin. He was convicted of possession of a controlled substance in PG 1, and the appellate court affirmed.

WHAT IS THE STATUTE OF LIMITATIONS FOR DELIVERY OF CONTROLLED SUBSTANCE OR MARIHUANA TO CHILD IN TEXAS?

The limitation period for delivery of a controlled substance or marihuana to a child is three years.

DELIVERY OF CONTROLLED SUBSTANCE OR MARIHUANA TO CHILD IN TEXAS

Texas punishes giving anyone under 18 years of age a controlled substance or marihuana in any usable amount as a second degree felony.

TEXAS DELIVERY OF CONTROLLED SUBSTANCE OR MARIHUANA TO CHILD COURT CASES

The case law regarding delivery of controlled substance or marihuana to child in Texas explains constructive delivery.

• In Pruitt v. State, the defendant sent her 17-year-old son, M.T.P., to his aunt’s house for a bottle of morphine tablets. The defendant told M.T.P. he could take one pill when he got them, and another after an hour had passed. He died of an overdose after taking xanax and nine morphine pills, and the defendant was convicted of delivering a controlled substance to a child. The appellate court affirmed, explaining one method of constructive transfer is for the transferor to instruct the recipient on the location of the contraband, and actual transfer occurs when the recipient retrieves the contraband.