81R8837 PEP-F

By: Madden H.B. No. 3228

A BILL TO BE ENTITLED

AN ACT

relating to the offense of prohibited substances and items in correctional facilities.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 38.11, Penal Code, as amended by Chapters 949 (H.B. 1575) and 1092 (H.B. 2077), Acts of the 79th Legislature, Regular Session, 2005, is reenacted and amended to read as follows:

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]. (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 or other wireless communications device or a component of one of those devices[, cigarette, tobacco product, or money] to a person in the custody [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 correctional facility [local jail regulated by the Commission on Jail Standards]; 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 [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 a person [an inmate] confined in the jail; or

(B) places restrictions on:

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

(ii) the manner in which a cigarette or tobacco product may be provided to a person [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 a correctional facility [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 in a correctional facility or[:

[(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 (b), (c), or (d)(1) [of this section] 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 [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 who is 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) "Correctional facility" means:

(A) any place described by Section 1.07(a)(14); or

(B) a secure correctional facility or secure detention facility, as defined ["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), 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 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 confined in [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 or other wireless communications device or a component of one of those devices.

SECTION 2. The change in law made by this Act applies only to an offense committed on or after the effective date of this Act. An offense committed before the effective date of this Act is governed by the law in effect when the offense was committed, and the former law is continued in effect for that purpose. For purposes of this section, an offense was committed before the effective date of this Act if any element of the offense occurred before that date.

SECTION 3. This Act takes effect September 1, 2009.