Texas Penal Code 38.11 – Prohibited Substances and Items in Correctional Facility

WHAT IS PROHIBITED SUBSTANCES AND ITEMS IN CORRECTIONAL FACILITY OR CIVIL COMMITMENT FACILITY IN TEXAS?

The Texas law against prohibited substances and items in a correctional facility or civil commitment facility forbids bringing certain items, such as drugs, alcohol, cell phones, weapons, money, or cigarettes, into correctional facilities and other secure facilities.

• What is a correctional facility in Texas? Texas Penal Code Section 1.07 defines a “correctional facility” as any place designated by law for the confinement of a person arrested for, charged with, or convicted of a crime. It includes jails, prison facilities, facilities operated by probation departments, and juvenile detention facilities.

• What is prohibited inside correctional facilities and civil commitment facilities in Texas? In Texas, it is a felony to bring the following items into a correctional facility or civil commitment facility:
  • alcoholic beverages
  • controlled substances
  • dangerous drugs
  • deadly weapons
  • wireless communication devices, such as cell phones, or components thereof
  • money
  • cigarettes

WHAT IS THE PROHIBITED SUBSTANCES AND ITEMS IN CORRECTIONAL FACILITY OR CIVIL COMMITMENT FACILITY LAW IN TEXAS?

Tex. Penal Code § 38.11. PROHIBITED SUBSTANCES AND ITEMS IN CORRECTIONAL FACILITY OR CIVIL COMMITMENT FACILITY.

(a) A person commits an offense if the person provides, or possesses with the intent to provide:

(1) an alcoholic beverage, controlled substance, or dangerous drug to a person in the custody of a correctional facility or civil commitment facility, except on the prescription of a practitioner;

(2) a deadly weapon to a person in the custody of a correctional facility or civil commitment facility;

(3) a cellular telephone or other wireless communications device or a component of one of those devices to a person in the custody of a correctional facility;

(4) money to a person confined in a correctional facility; or

(5) a cigarette or tobacco product to a person confined in a correctional facility, except that if the facility is a local jail regulated by the Commission on Jail Standards, the person commits an offense only if providing the cigarette or tobacco product violates a rule or regulation adopted by the sheriff or jail administrator that:

(A) prohibits the possession of a cigarette or tobacco product by a person confined in the jail; or

(B) places restrictions on:

(i) the possession of a cigarette or tobacco product by a person confined in the jail; or

(ii) the manner in which a cigarette or tobacco product may be provided to a person confined in the jail.

(b) A person commits an offense if the person takes an alcoholic beverage, controlled substance, or dangerous drug into a correctional facility or civil commitment facility.

(c) A person commits an offense if the person takes a controlled substance or dangerous drug on property owned, used, or controlled by a correctional facility or civil commitment facility.

(d) A person commits an offense if the person:

(1) possesses a controlled substance or dangerous drug while in a correctional facility or civil commitment facility or on property owned, used, or controlled by a correctional facility or civil commitment facility; or

(2) possesses a deadly weapon while in a correctional facility or civil commitment facility.

(e) It is an affirmative defense to prosecution under Subsection (b), (c), or (d)(1) that the person possessed the alcoholic beverage, controlled substance, or dangerous drug pursuant to a prescription issued by a practitioner or while delivering the beverage, substance, or drug to a warehouse, pharmacy, or practitioner on property owned, used, or controlled by the correctional facility or civil commitment facility. It is an affirmative defense to prosecution under Subsection (d)(2) that the person possessing the deadly weapon is a peace officer or is an officer or employee of the correctional facility or civil commitment facility who is authorized to possess the deadly weapon while on duty or traveling to or from the person’s place of assignment.

. . .

(g) An offense under this section is a felony of the third degree.

(h) Notwithstanding Section 15.01(d), if a person commits the offense of criminal attempt to commit an offense under Subsection (a), (b), or (c), the offense committed under Section 15.01 is a felony of the third degree.

(i) It is an affirmative defense to prosecution under Subsection (b) that the actor:

(1) is a duly authorized member of the clergy with rights and privileges granted by an ordaining authority that includes administration of a religious ritual or ceremony requiring the presence or consumption of an alcoholic beverage; and

(2) takes four ounces or less of an alcoholic beverage into a correctional facility and personally consumes all of the alcoholic beverage or departs from the facility with any portion of the beverage not consumed.

(j) A person commits an offense if the person, while confined in a correctional facility, possesses a cellular telephone or other wireless communications device or a component of one of those devices.

(k) A person commits an offense if, with the intent to provide to or make a cellular telephone or other wireless communications device or a component of one of those devices available for use by a person in the custody of a correctional facility, the person:

(1) acquires a cellular telephone or other wireless communications device or a component of one of those devices to be delivered to the person in custody;

(2) provides a cellular telephone or other wireless communications device or a component of one of those devices to another person for delivery to the person in custody; or

(3) makes a payment to a communication common carrier, as defined by Article 18A.001, Code of Criminal Procedure, or to any communication service that provides to its users the ability to send or receive wire or electronic communications.

WHAT IS THE PENALTY CLASS FOR PROHIBITED SUBSTANCES AND ITEMS IN CORRECTIONAL FACILITY OR CIVIL COMMITMENT FACILITY IN TEXAS?

Bringing a prohibited substance or item in a correctional facility or civil commitment facility is a third degree felony, punishable by two to ten years in prison.

WHAT IS THE PUNISHMENT RANGE FOR PROHIBITED SUBSTANCES AND ITEMS IN CORRECTIONAL FACILITY OR CIVIL COMMITMENT FACILITY IN TEXAS?

The punishment range for bringing a prohibited substance or item into a correctional facility or civil commitment facility, a third degree felony, is between two and ten years in prison, and up to a $10,000 fine.

WHAT ARE THE PENALTIES FOR PROHIBITED SUBSTANCES AND ITEMS IN CORRECTIONAL FACILITY OR CIVIL COMMITMENT FACILITY IN TEXAS?

A person charged with prohibited substances in a correctional facility or civil commitment facility 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 PROHIBITED SUBSTANCES AND ITEMS IN CORRECTIONAL FACILITY OR CIVIL COMMITMENT FACILITY IN TEXAS?

A person accused of bringing alcohol, a controlled substance, or dangerous drug into a correctional facility may assert he or she has a prescription for the item as a defense. The law further specifies that a member of the clergy may bring less than four ounces of alcohol into a correctional facility for a religious ritual or ceremony.

Some of the statute’s other enumerated affirmative defenses are intuitive: peace officers and other employees may carry deadly weapons into correctional and civil commitment facilities if authorized to do so, and deliveries of otherwise prohibited substances to on-site medical practitioners and pharmacies are permissible.

• Can a person smoke cigarettes in jail in Texas? Yes, unless the local sheriff or jail administrator has adopted a specific rule prohibiting tobacco use in local jails. Bringing cigarettes and other tobacco products into a jail is therefore not automatically punishable under this law.

• Can a person be charged with a felony in Texas for having drugs in jail? Yes. If a person is arrested and brought to jail, and drugs are found during the booking process, the person may be charged with prohibited substances and items in a correctional facility. However, legal possession requires “actual care, custody, control, or management.”In Woodard v. State, for example, the defendant was arrested and taken to jail with her property, and the officer carried the defendant’s purse containing drugs into the jail. She was convicted of possessing a prohibited substance in a correctional facility, but the appellate court reversed. The defendant did not ever have care, custody, or control of the prohibited substance while inside the jail.

• Can a person be charged with a felony in Texas for accidentally bringing drugs or a gun into a correctional facility? The Texas law against possession of prohibited substances and items in correctional facilities does not articulate a required culpable mental state. At minimum, a criminal charge requires proof of a voluntary act, but courts have limited the voluntariness requirement only to bodily movements.For example, an unconscious person with drugs in his pocket who is carried into a correctional facility did not voluntarily bring the drugs into the facility. But a person who walks into a correctional facility with contraband, even if he forgot he had it at the time, may be charged with possessing said contraband in a correctional facility.

WHAT IS THE STATUTE OF LIMITATIONS FOR PROHIBITED SUBSTANCES AND ITEMS IN CORRECTIONAL FACILITY OR CIVIL COMMITMENT FACILITY IN TEXAS?

The limitation period for prohibited substances and items in a correctional facility is three years.

PROHIBITED SUBSTANCES AND ITEMS IN CORRECTIONAL FACILITY OR CIVIL COMMITMENT FACILITY IN TEXAS

Texas law prohibits bringing alcohol, drugs, weapons, cell phones, and tobacco products into a correctional facility or civil commitment facility with intent to provide them to a person in custody. The statute outlaws both possessing a prohibited substance or item in a facility, and attempting to bring the prohibited substance or item into a facility under most circumstances.

TEXAS PROHIBITED SUBSTANCES AND ITEMS IN CORRECTIONAL FACILITY OR CIVIL COMMITMENT FACILITY COURT CASES

The case law regarding prohibited substances and items in a correctional facility or civil commitment facility in Texas explains the culpable mental state required, even though the statute does not articulate one. In practice, if a person is in possession of a prohibited substance or item while in a correctional facility or on property owned or used by a correctional facility, the person may be prosecuted.

• In Brown v. State, the defendant was arrested and brought to jail. He was charged and convicted of possessing a prohibited substance in a correctional facility after marijuana was found in his pocket during booking. He argued on appeal he did not voluntarily bring contraband into the jail because he did not voluntarily enter the facility. The Court upheld his conviction, and explained his conduct was not involuntary merely because he was in custody.