Image of Nathan Hendra with Minor Possessing Tobacco

Minor in Possession of Tobacco and E-Cigarettes

Minors (including anyone under the age of 21 years old) are prohibited from possessing tobacco products in Texas. The official name for this law is Possession, Purchase, Consumption, or Receipt of Cigarettes, E-cigarettes, or Tobacco Products by Minors Prohibited.

Effective as of September 2019, the law raised the minimum age to purchase tobacco products from 18 to 21.1 Before September 2019, the legal age to purchase tobacco products was 18.

As the name of the statute implies, the law extends beyond simply possession of tobacco. This law has been extended to also prohibit minors from purchasing, consuming, or accepting tobacco products or e-cigarettes. Additionally, the statute prohibits a minor from using false or fraudulent means to misrepresent their age in order to obtain tobacco or an e-cigarette.

Have you been charged with Possession of Tobacco Products? Call criminal lawyer Paul Saputo at (888) 239-9305 to discuss legal representation.

What is the current Texas law about Possession of Cigarettes, E-Cigarettes, or Tobacco Products by a Minor?

The offense is described in Section 161.252 of the Texas Health and Safety Code.2

(a) An individual who is younger than 21 years of age commits an offense if the individual:

(1) possesses, purchases, consumes, or accepts a cigarette, e-cigarette, or tobacco product; or

(2) falsely represents himself or herself to be 21 years of age or older by displaying proof of age that is false, fraudulent, or not actually proof of the individual’s own age in order to obtain possession of, purchase, or receive a cigarette, e-cigarette, or tobacco product.

What actions involving tobacco products are prohibited?

A minor cannot possess, purchase, consume or accept an e-cigarette or tobacco products. This means that a minor cannot even accept a single cigarette from a person legally allowed to have them. Prosecutors can attempt to prove “possession” by arguing that even if the tobacco or e-cigarette is not in the minor’s actual hands or pockets, the minor still had “constructive” possession by other means.

We have seen this constructive possession argument before, and while prosecutors do attempt this argument, they often stretch this idea too far. A jury or judge ultimately gets to make the decision about whether the minor possessed the tobacco product.

What is the punishment for Possession of Tobacco Products by a Minor?

A minor charged for possession, purchase, consumption, or receipt of tobacco products can be punished with a fine up to $100.3 This fine was lowered from $250 to $100 in 2019.4 In addition to the fine, the court will order the minor to attend an e-cigarette and tobacco awareness program.5

Are there any defenses to this charge?

It is an exception to prosecution:

  • if the minor can show they possessed the cigarette, e-cigarette, or tobacco product in the presence of an employer, if the possession or receipt is part of their duties as an employee6
  • In the participation of an inspection or test for seller compliance7 (a sting operation)
  • while at least 18 years of age; and presents at the time of purchase a valid military identification card of the United States military forces or the state military forces.8

As of 2019, the exception for use in the presence of a parent, guardian or spouse was removed from the law. So you can still be prosecuted even if a parent approves of tobacco use.9

Even if one of these defenses doesn’t apply, the state still has to prove beyond a reasonable doubt that you committed each element of the offense in order for you to be convicted.

Legal References:

1 S.B. 21, 86th Legislature, Section 14

2 Texas Health and Safety Code §161.252(a)

3 Texas Health and Safety Code §161.252(d)

4 S.B. 21, 86th Legislature, Section 14

5 Texas Health and Safety Code §161.253(a)

6 Texas Health and Safety Code §161.252(b)

7 Texas Health and Safety Code §161.252(c)

8 Texas Health and Safety Code §161.252(c-1)

9 S.B. 21, 86th Legislature, Section 14

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