Selling Drugs at a School

An adult who delivers drugs to a minor, meaning a person under the age of eighteen years, commits a serious Texas crime. But an adult who delivers drugs at or near a school commits another serious Texas crime. Whether the adult defendant delivers to another adult such as a teacher or school staff member or to a minor including school students, Texas Health & Safety Code §148.134 significantly enhances the criminal charges and penalties for drug deliveries in, around, or near a school. Schools, in the language and policy of the Texas legislature, are to be a drug-free zone. Texas's drug-free zone statute Health & Safety Code §148.134 is much more complex than just suggested. But that's the gist of it: the adult who delivers drugs in or near a school faces significantly enhanced charges and penalties. School drug sales are a very serious Texas crime. If you or someone you know faces any such charge, then get the best available legal representation. Retain premier Texas criminal defense attorney Doug Murphy for comprehensive, smart drug crime defense.

At School or Not at School

Texas law enhances the charge and penalty for unlawful drug sales to minors, no matter where those sales occur, at school or not at school. Texas law uses drug crime enhancements to punish offenders who sell to minors more severely than offenders who sell to adults. Health & Safety Code §148.122 is the Texas statute enhancing the crime of delivering drugs to minors, even when the minor is not at school. But if the offender delivers drugs at school, the offender commits another crime that the Texas legislature judges worthy of enhancement. Texas Health & Safety Code §148.134 is the separate drug-free zone statute that enhances the charges and penalties for drug deliveries at school. It matters whether the defendant sells to a minor. It also matters whether the defendant sells at a school. Indeed, conviction under the delivery-to-minors statute does not bar conviction under the delivery-at-school statute. Delivery to a minor at school is actually two crimes: the delivery to a minor crime and the delivery at school crime. The Texas legislature's message is quite clear: don't sell drugs at school.

The School Locations Where the Law Applies

Avoiding the school drug crime law's severe charge and penalty enhancements requires more than just staying out of elementary schools. Texas Health & Safety Code §148.134(c) enhances the charges and penalties when the defendant commits the drug crime “in, on, or within 1,000 feet of the premises of a school….” Health & Safety Code §148.134(a)(5) defines a school broadly to include “a private or public elementary or secondary school or a day-care center….” Note that the drug delivery need not occur inside the school if it still occurs on the school property. But the drug delivery also need not occur on the school property if it still occurs within 1,000 feet of the school. Subsection (c) also extends the reach of the statute's enhancements to a school bus. Other sections of Health & Safety Code §148.134 enhance the charges and penalties when the drug crime occurs at an institution of higher learning, which the statute defines as “any public or private technical institute, junior college, senior college or university, medical or dental unit, or other agency of higher education” as Texas law defines them. Texas's drug-free zone extends from elementary school through middle and high school and right into college.

The School Law Concerns Adult Sellers

Don't confuse to whom the school drug-crime law applies. The Texas law Health & Safety Code §148.134 that enhances the charge for delivering drugs at a school applies to adults, not minors. Adults, not minors, face the drug-free zone enhancements for drug delivery at a school. Minors, meaning those under eighteen years of age, can certainly commit youth drug crimes. Minors sell and deliver drugs to minors at schools. But Texas authorities generally charge minors as juveniles. And because juvenile court hears and decides their matters, juveniles do not face drug-crime enhancements for things like possession of a weapon, delivery to a minor, or delivery at school. Yet youths are also common targets of drug rings run by adults. Texas's drug-free zone law Health & Safety Code §148.134 aims at those adult sellers, not minors selling or delivering drugs at school.

Sale Versus Delivery

It's easy to use the terms sale and delivery interchangeably as if they were the same thing. When the question comes to Texas drug crime laws, sale and delivery are not the same thing. They are different things. Or, more accurately, every sale is a delivery, but some deliveries are not sales. Sale implies an exchange of money or something else of value for the drugs, while delivery implies any transfer of drugs, with or without a transaction for something of value. The critical point is that drug delivery is enough to implicate the drug-free zone enhancement for drug crime at school. The drugs-at-school law Health & Safety Code §148.134 doesn't require that the defendant has made a sale. No money or other thing of value needs to change hands. The defendant need not have entered into a transaction at school. Instead, delivery of the controlled substance is enough. And here's an especially scary thought: simply letting another briefly partake of the controlled substance that the defendant may be possessing or even using may be enough to qualify as delivery. The Texas legislature doesn't want anyone making controlled drugs available in any casual or illicit way at schools.

Personal Delivery Versus Delivery Through Others

The word delivery in the crime of delivering drugs at school sounds as if the adult defendant must be personally present giving out or selling the drugs at school. Personal presence is not required. The defendant commits the drug delivery at school crime even when working through others. Texas Health & Safety Code §148.002(8) defines deliver to mean “transfer, actually or constructively, to another….” Actual delivery would mean personal presence. But constructive delivery means working through another. Those others through whom the adult defendant delivers are often minors enrolled at the school. Adults can have a hard time getting into a school. Students enter easily. Adults thus typically rely on students to actually deliver the drugs. Under Health & Safety Code §148.002(8), the adults are still committing the enhanced crime, even when working through minors or others. Health & Safety Code §148.002(8) adds that the prosecution need not prove an agency relationship. The defendant doesn't have to hire, compensate, supervise, or direct the one who delivers the drug. A simple handoff to another for delivery at school may well do.

The Drugs to Which the School Law Applies

To qualify as a drug crime for enhancement under the Controlled Substance Act, the drug must be in one of Texas's Penalty Groups 1, 1-A, 2, 2-A, 3, or 4. Texas's Controlled Substances Act, Health & Safety Code §§480.001, et seq., classifies controlled drugs according to how addictive, dangerous, or therapeutic they are. Penalty Group 1 includes especially addictive and dangerous drugs like heroin and cocaine. Penalty Group 1-A focuses on LSD and its derivatives. Penalty Group 2 lists hallucinogens like Ecstasy and PCP. Penalty Group 2-A lists cannabinoids like K2 and Spice. Penalty Group 3 lists sedatives, Valium, and Ritalin. Penalty Group lists other prescription drugs subject to abuse. Yet no matter which Penalty Group the drug falls into, whether the highest groups regulating hard drugs like heroin, meth, and fentanyl, or the lowest groups applying to sedatives and marijuana, the drug-free zone statute Health & Safety Code §148.134 still applies. The Texas legislature doesn't want drugs in or near schools.

The Enhancement for Drug Delivery at School

The actual enhancements can be huge. Texas's drug free zone statute has real teeth. Texas Health & Safety Code §148.134(b) enhances the charges for a drug crime at school by raising the felony level by one degree. Thus, a state jail felony becomes a third-degree felony, a third-degree felony becomes a second-degree felony, and a second-degree felony becomes a first-degree felony. The fines for each of those felony levels are ordinarily the same: up to $10,000. But the prison time significantly increases with each increase in felony level. A state jail felony is just 180 days to two years, while a third-degree felony is two to ten years, a second-degree felony is two to twenty years, and a first-degree felony is five years to ninety-nine years or life. Health & Safety Code §148.134(c) also raises the defendant's minimum sentence by five years while doubling the maximum fine if the defendant commits the drug delivery at school crime. And to make the enhancements especially severe, the statute's subsection (h) prohibits the enhanced sentence from running concurrently with the sentence for any other conviction. You must add the time to other sentences, not do time for both sentences all at once.

The Role of Criminal Defense Counsel

As frightening as school drug crime enhancements can be, you or anyone else facing those charges should know that help is available. A charge is not a conviction. Don't give up hope, throw in the towel, admit to things you did not do, and suffer a sentence you don't deserve, and that won't help anyone. Yes, the prosecution has all the resources and standing of the state. But a skilled, experienced, and aggressive Texas criminal defense attorney can level the playing field for the defendant. An expert Texas criminal defense attorney has a critical role to play in fighting the charge and penalty enhancements under Texas's school drug crimes law Health & Safety Code §148.134. The steps that a skilled defense attorney can take include, among many other things:

  • appearing on the defendant's behalf at arraignment, preliminary examination, bond hearings, motion hearings, pretrial conferences, trial, and post-trial motions for relief
  • communicating with the court, ensuring that the defendant appears as necessary and meets all deadlines and due dates to preserve every substantive and procedural right
  • communicating and negotiating with the prosecution to ensure that the prosecution sees the evidence in its proper context, sees the defendant in the best light, and dismisses charges or offers a favorable plea bargain
  • investigating, researching, drafting, and arguing motions to dismiss the charges, to bar unduly prejudicial arguments and evidence, and to strike evidence obtained in violation of constitutional rights
  • obtaining all prosecution evidence, including evidence exonerating the defendant from the charged crime and evidence in mitigation
  • preparing exhaustively for trial, including an opening statement, cross-examination of prosecution witnesses, direct examination of defense witnesses, trial motions, and closing argument
  • moving for reconsideration of any adverse decisions or appealing those decisions to appellate courts, while reviewing, challenging, and supplementing sentencing reports
  • advising the defendant on plea offers, trial strategies such as whether to testify and what witnesses and other evidence to present, and how to address the collateral consequences of charges

Expert Texas Criminal Defense Available

If you or someone you love faces Texas drug charges, including serious charges for delivering drugs at a school, premier Texas criminal defense attorney Doug Murphy is available for expert representation. You have every reason to trust attorney Murphy's expert skills. Attorney Murphy lectures nationwide to other lawyers who are learning expert criminal defense skills. Attorney Murphy is that highest level of masterful criminal defense lawyer who teaches not just law students but other experienced lawyers. Texas criminal defense attorney Doug Murphy's fellow lawyers also voted him Best Lawyers in America's 2021 Lawyer of the Year. Attorney Murphy is one of only two Texas lawyers holding both Criminal Law Certification and DWI Board Certification. Contact Doug Murphy Law Firm online or at (713) 229-8333 today for aggressive defense of Texas drug crime charges.

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