Prohibited Substances and Items in Correctional Facility: Texas Penal Code §38.11

The Texas Prohibited Substances and Items in Correctional Facility law gives police the right to arrest you if they believe you possessed (as an inmate), or provided to an inmate, a number of different restricted items, including drugs, alcohol, weapons, cell phones, money and cigarettes.

The Texas legislature codified this criminal offense in Texas Penal Code Section 38.11. The law was updated in 2023 to add provisions that make it illegal under this law to possesses a cell phone or alcohol in a civil commitment facility or corrections facility, and in 2025 the legislature increased penalties for certain correctional-facility cases—adding second-degree and first-degree enhancements that apply prospectively beginning September 1, 2025.

The Penal Code classifies the Texas Prohibited Substances and Items in Correctional Facility law under Title 8 “Offenses Against Public Administration,” Chapter 38 “Obstructing Governmental Operation.” Learn more about the Texas offense of Prohibited Substances and Items in Correctional Facility below.

What is the current Texas law about Prohibited Substances and Items in Correctional Facility?

AV Preeminent Texas lawyer Paul Saputo provides the current law defining Prohibited Substances and Items in Correctional Facility in Penal Code Section §38.11, as follows:^[1]

(a) A person commits an offense if the person provides, or possesses with the intent to provide:

(1) an alcoholic beverage, controlled substance, or dangerous drug to a person in the custody of a correctional facility or residing in a civil commitment facility, except on the prescription of a practitioner;

(2) a deadly weapon to a person in the custody of a correctional facility or residing in a civil commitment facility;

(3) a cellular telephone or other wireless communications device or a component of one of those devices to a person in the custody of a correctional facility;

(4) money to a person confined in a correctional facility; 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 providing the cigarette or tobacco product 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 confined in the jail; or

(B) places restrictions on:

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

(ii) the manner in which a cigarette or tobacco product may be provided to a person 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 civil commitment facility.

(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 or civil commitment facility.

(d) A person commits an offense if the person:

(1) possesses an alcoholic beverage, controlled substance, or dangerous drug while in a correctional facility or civil commitment facility or on property owned, used, or controlled by a correctional facility or civil commitment facility; or

(2) possesses a deadly weapon while in a correctional facility or civil commitment facility.

Subsections (e), (f), (g), (g-1), and (g-2) address affirmative defenses, penalties, and definitions, and the offense framework continues in subsection (j), as follows:^[2]

(j) A person commits an offense if the person, while confined in a correctional facility, possesses a cellular telephone or other wireless communications device or a component of one of those devices.

(j-1) A person commits an offense if the person, while residing in a civil commitment facility, possesses a cellular telephone or other wireless communications device or a component of one of those devices unless the device or component is authorized by the Texas Civil Commitment Office.

(k) A person commits an offense if, with the intent to provide to or make a cellular telephone or other wireless communications device or a component of one of those devices available for use by a person in the custody of a correctional facility or residing in a civil commitment facility, the person:

(1) acquires a cellular telephone or other wireless communications device or a component of one of those devices to be delivered to the person in custody or residing in the facility;

(2) provides a cellular telephone or other wireless communications device or a component of one of those devices to another person for delivery to the person in custody or residing in the facility; or

(3) makes a payment to a communication common carrier, as defined by Article 18A.001, Code of Criminal Procedure, or to any communication service that provides to its users the ability to send or receive wire or electronic communications.

What is the penalty for a Texas Prohibited Substances and Items in Correctional Facility offense?

A conviction for Prohibited Substances and Items in Correctional Facility is generally a third-degree felony.^[3]

For offenses under §38.11(a)(1), (b), or (c) committed with respect to a correctional facility, the current law provides an enhancement to a second-degree felony if the actor is employed by the facility.^[4]

If the actor is employed by the facility and the controlled substance or dangerous drug involved causes the death of a person in custody, the offense can be enhanced to a first-degree felony, with a 15-year minimum sentence.^[5]

The enhancements described above apply prospectively to offenses committed on or after September 1, 2025; earlier conduct remains governed by prior law.^[6]

What changed in 2025?

The 2025 legislature added new penalty enhancements to Section 38.11 for certain correctional-facility cases.

By default, offenses under §38.11 remain third-degree felonies, but if the actor is employed by a correctional facility and commits an offense under §38.11(a)(1), (b), or (c) with respect to that facility, the punishment elevates to a second-degree felony.^[7]

If, in those employee cases, the controlled substance or dangerous drug involved causes the death of a person in custody, the offense elevates to a first-degree felony punishable by 15 to 99 years or life and a fine not to exceed $250,000.^[8]

These changes take effect September 1, 2025, and apply prospectively. Conduct before September 1, 2025, is governed by prior law, and conduct on or after that date is governed by the amended statute.^[9]

What changes did the legislature make to this law in 2023?

In 2023, the Texas legislature added a subsection (j-1) that made it illegal for people in a civil commitment facility to possess a cell phone or other wireless communications device. The legislature also made it illegal to possess alcohol in a civil commitment facility or corrections facility.^[10]

How can I be charged with a Prohibited Substances and Items in Correctional Facility offense in Texas?

You can be charged with Prohibited Substances and Items in Correctional Facility in Texas if the state’s attorneys believe that each of the elements of §38.11(a), (b), (c), (d), (j), (j-1), or (k), as described in the section above have been met.

What is the statute of limitations for Prohibited Substances and Items in Correctional Facility in Texas?

Prohibited Substances and Items in Correctional Facility offenses have a three-year limitations period.^[11]

Can you get probation for Prohibited Substances and Items in Correctional Facility in Texas?

The Texas Code of Criminal Procedure allows both judges and juries to grant probation for Prohibited Substances and Items in Correctional Facility, and judges are also allowed to accept deferred adjudication plea deals.^[12]

Note, however, that 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.^[13]

What level of crime is Prohibited Substances and Items in Correctional Facility in Texas?

The Penal Code classifies Prohibited Substances and Items in Correctional Facility as a third degree felony by default, but it can be a second-degree felony when certain correctional-facility offenses are committed by facility employees and a first-degree felony when, in those cases, a controlled substance or dangerous drug causes the death of a person in custody.

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

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Legal References:

^1. Texas Penal Code §38.11. This law is current as of 2025.^2. Texas Penal Code §38.11(e)-(g-2), as amended by HB 3464, 89th Legislature (RS), Section 1^3. Texas Penal Code §38.11(g)^4. Texas Penal Code §38.11(g-1), as amended by HB 3464, 89th Legislature (RS), Section 1^5. Texas Penal Code §38.11(g-2), as amended by HB 3464, 89th Legislature (RS), Section 1^6. HB 3464, 89th Legislature (RS), Section 2; HB 3464, 89th Legislature (RS), Section 3^7. Texas Penal Code §38.11(g-1), as amended by HB 3464, 89th Legislature (RS), Section 1^8. Texas Penal Code §38.11(g-2), as amended by HB 3464, 89th Legislature (RS), Section 1^9. HB 3464, 89th Legislature (RS), Sections 2–3^10. SB 1179, 88th Texas Legislature (RS), Section 5^11. See Code of Criminal Procedure §12.01(11)^12. See Chapter 42A, Texas Code of Criminal Procedure, Art. 42A.054, Art. 42A.056, Art. 42A.102^13. Art. 42A.054(b), Texas Code of Criminal Procedure