Third MIP of tobacco

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Third MIP of tobacco

What options does the judge have if I am in court for my third possession of tobacco?

Asked on June 4, 2009 under Criminal Law, Texas

Answers:

MD, Member, California Bar / FreeAdvice Contributing Attorney

Answered 12 years ago | Contributor

Possession how?

It depends on the sentencing guidelines, which most of us may not have access to tell you.  Contact your public defender or try www.attorneypages.com.

What I can show you:

Sec. 48.01.  SMOKING TOBACCO.  (a)  A person commits an offense if he is in possession of a burning tobacco product or smokes tobacco in a facility of a public primary or secondary school or an elevator, enclosed theater or movie house, library, museum, hospital, transit system bus, or intrastate bus, as defined by Section 541.201, Transportation Code, plane, or train which is a public place.

(b)  It is a defense to prosecution under this section that the conveyance or public place in which the offense takes place does not have prominently displayed a reasonably sized notice that smoking is prohibited by state law in such conveyance or public place and that an offense is punishable by a fine not to exceed $500.

(c)  All conveyances and public places set out in Subsection (a) of Section 48.01 shall be equipped with facilities for extinguishment of smoking materials and it shall be a defense to prosecution under this section if the conveyance or public place within which the offense takes place is not so equipped.

(d)  It is an exception to the application of Subsection (a) if the person is in possession of he burning tobacco product or smokes tobacco exclusively within an area designated for smoking tobacco or as a participant in an authorized theatrical performance.

(e)  An area designated for smoking tobacco on a transit system bus or intrastate plane or train must also include the area occupied by the operator of the transit system bus, plane, or train.

(f)  An offense under this section is punishable as a Class C misdemeanor.

 

Sec. 38.11.  PROHIBITED SUBSTANCES AND ITEMS IN ADULT OR JUVENILE CORRECTIONAL OR DETENTION FACILITY OR ON PROPERTY OF TEXAS DEPARTMENT OF CRIMINAL JUSTICE OR TEXAS YOUTH COMMISSION.

 

 

Text of subsection as amended by Acts 2005, 79th Leg., R.S., Ch. 949, Sec. 48

 

 

 

(a)  A person commits an offense if the person provides:

(1)  an alcoholic beverage, controlled substance, or dangerous drug to an inmate of a correctional facility or to a person in the custody of a secure correctional facility or secure detention facility for juveniles, except on the prescription of a physician or practitioner, as defined in Section 551.003, Occupations Code;

(2)  a deadly weapon to an inmate of a correctional facility or to a person in the custody of a secure correctional facility or secure detention facility for juveniles;

(3)  a cellular telephone, cigarette, tobacco product, or money to an inmate of a correctional facility operated by or under contract with the Texas Department of Criminal Justice or to a person in the custody of a secure correctional facility or secure detention facility for juveniles, except for money that is provided for the benefit of the juvenile in accordance with facility rules;

(4)  a cellular telephone or money to a person confined in a local jail regulated by the Commission on Jail Standards; or

(5)  a cigarette or tobacco product to a person confined in a local jail regulated by the Commission on Jail Standards and in providing the cigarette or tobacco product the person violates a rule or regulation adopted by the sheriff or jail administrator that:

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

(B)  places restrictions on:

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

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

 

 

Text of subsection as amended by Acts 2005, 79th Leg., R.S., Ch. 1092, Sec. 1

 

 

 

(a)  A person commits an offense if the person provides:

(1)  an alcoholic beverage, controlled substance, or dangerous drug to an inmate of a correctional facility, except on the prescription of a physician or practitioner, as defined in Section 551.003, Occupations Code;

(2)  a deadly weapon to an inmate of a correctional facility;

(3)  a cellular telephone or other wireless communications device or a component of one of those devices, cigarette, tobacco product, or money to an inmate of a correctional facility operated by or under contract with the Texas Department of Criminal Justice;

(4)  a cellular telephone or money to a person confined in a local jail regulated by the Commission on Jail Standards; or

(5)  a cigarette or tobacco product to a person confined in a local jail regulated by the Commission on Jail Standards and in providing the cigarette or tobacco product the person violates a rule or regulation adopted by the sheriff or jail administrator that:

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

(B)  places restrictions on:

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

(ii)  the manner in which a cigarette or tobacco product may be provided to an inmate 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 a secure correctional facility or secure detention facility for juveniles, except for delivery to a facility warehouse, pharmacy, or physician.

(c)  A person commits an offense if the person takes a controlled substance or dangerous drug on property owned, used, or controlled by the Texas Department of Criminal Justice, the Texas Youth Commission, or a secure correctional facility or secure detention facility for juveniles, except for delivery to a warehouse, pharmacy, or physician on property owned, used, or controlled by the department, the commission, or the facility.

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

(1)  possesses a controlled substance or dangerous drug while:

(A)  on property owned, used, or controlled by the Texas Department of Criminal Justice, the Texas Youth Commission, or a secure correctional facility or secure detention facility for juveniles;  or

(B)  in a correctional facility or a secure correctional facility or secure detention facility for juveniles;  or

(2)  possesses a deadly weapon while in a correctional facility or in a secure correctional facility or secure detention facility for juveniles.

(e)  It is an affirmative defense to prosecution under Subsection (d)(1) of this section that the person possessed the controlled substance or dangerous drug pursuant to a prescription issued by a practitioner or while delivering the substance or drug to a warehouse, pharmacy, or physician on property owned, used, or controlled by the department, the Texas Youth Commission, or by the operator of a secure correctional facility or secure detention facility for juveniles.  It is an affirmative defense to prosecution under Subsection (d)(2) of this section that the person possessing the deadly weapon is a peace officer or is an officer or employee of the correctional facility authorized to possess the deadly weapon while on duty or traveling to or from the person's place of assignment.

(f)  In this section:

(1)  "Practitioner" has the meaning assigned by Section 481.002, Health and Safety Code.

(2)  "Prescription" has the meaning assigned by Section 481.002, Health and Safety Code.

(3)  "Cigarette" has the meaning assigned by Section 154.001, Tax Code.

(4)  "Tobacco product" has the meaning assigned by Section 155.001, Tax Code.

(5)  "Secure correctional facility" and "secure detention facility" have the meanings assigned by Section 51.02, Family Code.

(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) or (b), 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 the correctional facility or the secure correctional facility or secure detention facility for juveniles 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 an inmate of a correctional facility operated by or under contract with the Texas Department of Criminal Justice or while in the custody of a secure correctional facility or secure detention facility for juveniles possesses a cellular telephone.

(j)  A person commits an offense if the person while an inmate of a correctional facility operated by or under contract with the Texas Department of Criminal Justice possesses a cellular telephone or other wireless communications device or a component of one of those devices.

 

Added by Acts 1991, 72nd Leg., 2nd C.S., ch. 10, Sec. 5.01, eff. Oct. 1, 1991. Renumbered from Penal Code Sec. 38.112 and amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994. Amended by Acts 1999, 76th Leg., ch. 362, Sec. 1, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 649, Sec. 1, eff. Sept. 1, 1999; Acts 2003, 78th Leg., ch. 470, Sec. 1 to 3, eff. Sept. 1, 2003.

Amended by:

Acts 2005, 79th Leg., Ch. 499, Sec. 1, eff. June 17, 2005.

Acts 2005, 79th Leg., Ch. 949, Sec. 47, eff. September 1, 2005.

Acts 2005, 79th Leg., Ch. 949, Sec. 48, eff. September 1, 2005.

Acts 2005, 79th Leg., Ch. 1092, Sec. 1, eff. September 1, 2005.



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