Possession of Prohibited Substances and Items in a Correctional Facility

The concept of smuggling contraband into prison for an inmate has been enshrined in our culture with cartoonish images of metal files baked into cakes in an attempt to help the inmate escape. But the reality of transmitting or handling prohibited substances or items in a Texas correctional facility is no laughing matter. Texas law forbids a wide array of items or substances in its correctional facilities, and violating these statutes can result in felony charges. Whether you were an inmate caught with contraband or a visitor accused of smuggling illegal substances into a correctional facility, you face serious legal consequences. An experienced Houston criminal defense lawyer is your best bet when it comes to putting on a strong defense and fighting the charges against you.

If you are facing a charge of possessing prohibited substances and items in a Houston correctional facility, contact the Doug Murphy Law Firm, P.C. Doug Murphy is an experienced criminal defense attorney who has an extensive track record of defending the accused in Houston and the surrounding areas. For a free consultation, contact the Doug Murphy Law Firm, P.C. today.

Texas Laws Related to Prohibited Substances and Items in Correctional Facilities

The crime of possession of prohibited substances and items in a correctional facility is governed by the Texas Penal Code. According to Section 38.11 of the Texas Penal Code, there are a variety of ways in which a prosecutor can make a case against you. The elements of this crime are broad enough that it can apply to inmates, prison officials, or visitors. There are four different ways in which you can violate Texas' laws on prohibited substances and items in correctional facilities:

1. Providing or possessing with an intent to provide an inmate with alcohol, drugs, cell phones, money, deadly weapons, and, in certain circumstances, tobacco products;
2. Taking drugs or alcohol into a correctional facility;
3. Taking drugs or alcohol onto property owned, used, or controlled by a correctional facility; or
4. Possessing a deadly weapon in a correctional facility.

Generally speaking, that means you can be charged for (a) merely possessing certain items in a correctional facility or (b) providing or intending to provide another person with certain items. For example, you will violate the statute for possessing a deadly weapon, alcohol, or drugs (i.e., certain items) regardless of your intentions. But it is only unlawful to possess money or cell phones if you do so with the intent to give them to an inmate.

Tobacco products are a unique example. State law does not outlaw the possession of cigarettes in a correctional facility. However, certain municipalities outlaw smoking within their city jails. If it is against the rules of the jail for inmates to have tobacco products, you are in violation of the statute for providing them or possessing with the intent to provide them with tobacco.

The statute is especially open-ended when it comes to the definition of providing an inmate with a cell phone. The statute is not limited to working phones—bringing in a component for a phone is enough to be charged. In fact, paying the mobile carrier bill for a phone you know to be intended for the possession of an inmate is enough to violate the statute.

How Is a Correctional Facility Defined in Texas?

You will also note that when it comes to Section 38.11 of the Texas Penal Code, the definition of a correctional facility is broad. The statute applies to any correctional facility operated by:

• A municipality, such as a city jail;
• A county, such as a county jail;
• A facility operated by the Texas Department of Criminal Justice; or
• A private facility operating under contract with any division of the Texas Department of Criminal Justice

What's more, the statute does not pertain only to jails and prisons, but to any property owned or operated by the entities listed above.

Examples of Criminal Activity According to the Prohibited Substances and Items in Correctional Facilities Statute

Consider the following examples. They illustrate the ways in which slightly different conduct may lead to very different outcomes.

You are visiting an old friend in a Texas county jail. You enter the jail without any trouble, but before you can meet with your friend, you are subjected to a search of your person. Bunched up in your sock is a pack of cigarettes and a cell phone. These are your personal items; you had no intention of passing them off to your friend, and you always carry your cigarettes and phone in your socks for safekeeping.

Because you lacked the intent to provide an inmate with these prohibited items, you are not guilty of possessing prohibited substances or items in a correctional facility. That doesn't mean you won't be charged with a crime; it is in these situations where an experienced criminal defense attorney may be able to have any charges against you dropped.

However, a small change in the facts can lead to a severe change in the outcome:

The circumstances are the same as before. You visit a Texas county jail in order to see an old friend. You are carrying a cell phone in your sock and cigarettes in your back pocket. The jail does not have a policy that bans smoking. You intend to give both items to your friend to help him pass the time. You get the items through security undetected, but an officer sees you slip the phone and cigarettes under the table to your friend. Because the jail doesn't bar tobacco use, you aren't charged with a crime for providing those to your friend. The phone is a different story. Providing an inmate with a cell phone is specifically outlawed by the Texas Penal Code, and you will be charged with possession of a prohibited substance or item in a correctional facility.

Potential Penalties for a Conviction

Possession of a prohibited substance or item in a correctional facility is a felony in the third degree under Texas law. It is punishable by a prison sentence of no less than 2 years and no more than 10 years. What's more, it also carries a potential fine not to exceed $10,000.

In addition to the statutory penalties you face, you will also have to deal with the hardships of being a convicted felon once you are released from prison. You will lose your right to vote as well as your right to own a firearm. Your criminal record will be available to anyone who runs a background check on you, which can make it extremely difficult to obtain housing or hold down a job.

In some cases, a prosecutor may be willing to offer a plea. However, many times that will still involve you agreeing to have a felony conviction on your record. In attorney Doug Murphy's experience, taking a case to trial before a jury of your peers is often your best chance to avoid a felony conviction.

Common Defenses

There are a few defenses to the crime of possessing a prohibited substance or item in a correctional facility written into the statute.

Prescription Drugs

Just like in the outside world, there are certain people authorized to handle controlled substances while in prison. If you are in possession of a controlled substance, but you have a valid prescription from a healthcare provider, you have a valid defense. This also applies to anyone authorized to transport controlled substances into the prison in order to deliver them to a medical practitioner or pharmacy.

Peace Officer Carrying a Firearm

One obvious exception to the prohibition of possessing deadly weapons within a correctional facility applies to peace officers. Certain law enforcement officers and facility employees are authorized to carry firearms while on prison grounds; they are not subject to Section 38.11 of the Texas Penal Code.

Clergy

Finally, certain religious rituals require the use of alcohol. This includes the Christian rite of Holy Communion. Authorized members of the clergy are allowed to possess small amounts of alcohol within a correctional facility so long as it is to be used during holy communion. Clergy members are not allowed to carry more than four ounces of alcohol at any given time while on prison grounds.

Contact a Houston Possession of Prohibited Substances in a Correctional Facility Attorney

If you have been charged with possession of a prohibited substance or item in a correctional facility, you are in for a tough legal fight. You will have the weight of the State of Texas against you, and the consequences of a conviction can be severe. But you don't have to defend yourself on your own. Houston defense attorney Doug Murphy has the experience and insight to give you the strongest defense possible.

Doug Murphy is considered to be one of the top criminal defense attorneys in Houston, and he has the accolades to prove it. In fact, he is so well respected in the legal community that he is frequently invited to speak at seminars and share his insights on criminal defense with other attorneys. To have those insights put to work on your defense, contact the Doug Murphy Law Firm, P.C. today at 713-229-8333 for your free consultation.