Delivery of Controlled Substance or Marihuana to Child: Texas Health and Safety Code §481.122

The Texas Delivery of Controlled Substance or Marihuana to Child law gives police the right to arrest you if they believe you gave or intended to give marijuana or a controlled substance to a child, anyone who is in pimary or secondary school (even if they are over 18 years old), or even another adult who you believed would give marijuana to those children and students.

The Texas legislature codified this criminal offense in Texas Health and Safety Code Section 481.122. The law was not amended in 2023. The legislature most recently amended the law in 2021 by adding Penalty Group 1-B drugs to the list of controlled substances covered under this law.

State law uses the spelling “marihuana” (with an “H”) instead of “marijuana” (with a “J”), but we use the more common “marijuana” spelling throughout this article.

The Health and Safety Code classifies the Texas Delivery of Controlled Substance or Marijuana to Child law under Title 6 “Food, Drugs, Alcohol, and Hazardous Substances,” Chapter 481 “Texas Controlled Substances Act.” Learn more about the Texas offense of Delivery of Controlled Substance or Marihuana to Child below.

What is the current Texas law about Delivery of Controlled Substance or Marihuana to Child?

The current Texas law defines the offense of Delivery of Controlled Substance or Marihuana to Child in Health and Safety Code Section §481.122 as follows:^[1]

(a) A person commits an offense if the person knowingly delivers a controlled substance listed in Penalty Group 1, 1-A, 1-B, 2, or 3 or knowingly delivers marihuana and the person delivers the controlled substance or marihuana to a person:

(1) who is a child;

(2) who is enrolled in a public or private primary or secondary school; or

(3) who the actor knows or believes intends to deliver the controlled substance or marihuana to a person described by Subdivision (1) or (2).

Under this law, “child” means anyone under 18 years old.^[2]

Are any affirmative defenses available?

There is an affirmative defense described in this statute available for you if you were a child when you committed the offense or if you were under 21 years old and gave less than 1/4 ounce of marijuana to a child (and did not charge any money for it).^[3]

How can I be charged with Delivery of Controlled Substance or Marijuana to Child offense in Texas?

You can be charged with Delivery of Controlled Substance or Marihuana to Child if the state’s attorneys believe that each of the elements of 481.122(a)(1), (a)(2) or (a)(3), as described in the section above, have been met.

What is the statute of limitation for Delivery of Controlled Substance or Marijuana to Child in Texas?

Misdemeanor level Delivery of Controlled Substance or Marijuana to Child charges have a two-year limitations period.^[4] Felony level offenses have a three-year limitations period.^[5]

What is the penalty for a Texas Delivery of Controlled Substance or Marijuana to Child offense?

A conviction for Delivery of Controlled Substance or Marihuana to Child is punished as a second degree felony,^[6] with a maximum possible fine under Texas state law of up to $10,000 and prison time of up to 20 years.

The Use of Child in Commission of Offense Penalty Enhancement

This offense may be enhanced under the Use of Child in Commission of Offense penalty enhancement if the the state can prove that you used or attempted to use a child younger than 18 years of age to commit or assist in the commission of the offense.^[7] This enhancement increases the penalty classification to a first degree felony.^[8]

Can you get probation for Delivery of Controlled Substance or Marijuana to Child in Texas?

The Texas Code of Criminal Procedure allows both judges and juries to grant probation for Delivery of Controlled Substance or Marijuana to Child, and judges are also allowed to accept deferred adjudication plea deals.^[9]

Note, however, that no matter the offense, neither judges nor juries may recommend community supervision for any suspended sentence of over 10 years.^[10] Also, judges may not grant community supervision after a conviction if (1) the defendant used or exhibited a deadly weapon during the commission of the felony or immediate flight thereafter and (2) the defendant used or exhibited the deadly weapon himself or was a party to the offense and knew that a deadly weapon would be used or exhibited.^[11]

Additionally, if the offense is enhanced under the Use of Child in Commission of Offense penalty enhancement, Delivery of Controlled Substance or Marijuana to Child convictions are not eligible for judge-ordered community supervision.^[12]

What level of crime is Delivery of Controlled Substance or Marijuana to Child in Texas?

The Health and Safety Code classifies Delivery of Controlled Substance or Marijuana to Child as a second degree felony.

Learn more about the penalty range for this offense in the section above.

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Legal References:

^1. Texas Health and Safety Code §481.122. This law is current as of 2024.^2. Texas Health and Safety Code §481.122(d)^3. Texas Health and Safety Code §481.122(b)^4. Code of Criminal Procedure 12.02(a)^5. See Code of Criminal Procedure 12.01(9)^6. Texas Health and Safety Code §481.122(c)^7. Texas Health And Safety Code §481.140(a)^8. Texas Health And Safety Code §481.140(a)^9. See Chapter 42, Texas Code of Criminal Procedure, Art. 42A.054, Art. 42A.056, Art. 42A.102 .^10. Art. 42A.053(c), Texas Code of Criminal Procedure^11. Art. 42A.054(b), Texas Code of Criminal Procedure^12 See Art. 42A.054(a)(17)(A), Texas Code of Criminal Procedure