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Secrets of the Texas Criminal Justice System and Your Rights
Delivery of any drug is a crime. It is a more serious crime in Texas if the intended recipient of the controlled substance is a minor or is still enrolled in a secondary school. If accused of this offense, it is important to consult with a drug delivery lawyer to avoid the most serious consequences and protect your legal rights.
Delivery of a Controlled Substance to a Child
The crime of delivery to a child is committed when:
- A person knowingly delivers —
- A controlled substance in Penalty Group 1, 1-A, 2, or 3, or
- To a person who is, or is believed by the person performing the delivery to be —
- Younger than age18, or
- Enrolled in a public or private elementary or secondary school.
A Texas appellate court ruled that the consumption of a drug by a pregnant woman does not constitute the crime of delivering a controlled substance to a child. Without deciding whether a fetus is a “person” under the age of 18, the court concluded that consuming a drug does not transfer possession of the drug to the fetus as the crime of delivery requires.
Potential Drug Defenses
In addition to the other defenses that are available to a drug charge, Texas law creates certain “affirmative defenses” to the charge of delivery of a controlled substance to a child. A defendant charged with delivery to a child can avoid conviction if:
- The defendant was younger than age 18 when the delivery was made; or
- The defendant was younger than age 21 at the time of delivery and —
- The only drug delivered was less one-fourth ounce or less of marijuana, and
- The defendant did not receive remuneration (payment or anything of value) in exchange for delivering the marijuana.
If one of the affirmative defenses applies, the defendant might still be guilty of delivery, but will not be guilty of the more serious crime of delivering a controlled substance to a child.
Penalties for Drug Delivery
The crime of delivery to a child is a second-degree felony, punishable by a prison sentence of not less than two years or more than 20 years.
Enhancement for injury or death
If death or serious injury results from the ingestion of a controlled substance that the defendant delivered, the offense is a first degree felony, punishable by a prison sentence of not less than five years or more than 20 years, or by a life sentence.
Enhancement for using children to commit offense
If a person under the age of 18 assisted in the commission of the offense. Or was made to participate in the offense by the use or threat of force. The offense is a first degree felony. Punishable by a prison sentence of not less than five years or more than 20 years. Or by a life sentence.