Sec. 38.11. PROHIBITED SUBSTANCES AND ITEMS IN CORRECTIONAL FACILITY. (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, except on the prescription of a practitioner;
(2) a deadly weapon to a person in the custody of a correctional 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.
(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.
(d) A person commits an offense if the person:
(1) possesses a controlled substance or dangerous drug while in a correctional facility or on property owned, used, or controlled by a correctional facility; or
(2) possesses a deadly weapon while in a correctional facility.
(e) It is an affirmative defense to prosecution under Subsection (b), (c), or (d)(1) that the person possessed the alcoholic beverage, controlled substance, or dangerous drug pursuant to a prescription issued by a practitioner or while delivering the beverage, substance, or drug to a warehouse, pharmacy, or practitioner on property owned, used, or controlled by the correctional facility. It is an affirmative defense to prosecution under Subsection (d)(2) that the person possessing the deadly weapon is a peace officer or is an officer or employee of the correctional facility who is authorized to possess the deadly weapon while on duty or traveling to or from the person's place of assignment.
(f) In this section:
(1) "Practitioner" has the meaning assigned by Section 481.002, Health and Safety Code.
(2) "Prescription" has the meaning assigned by Section 481.002, Health and Safety Code.
(3) "Cigarette" has the meaning assigned by Section 154.001, Tax Code.
(4) "Tobacco product" has the meaning assigned by Section 155.001, Tax Code.
(5) "Component" means any item necessary for the current, ongoing, or future operation of a cellular telephone or other wireless communications device, including a subscriber identity module card or functionally equivalent portable memory chip, a battery or battery charger, and any number of minutes that have been purchased or for which a contract has been entered into and during which a cellular telephone or other wireless communications device is capable of transmitting or receiving communications.
(6) "Correctional facility" means:
(A) any place described by Section 1.07(a)(14)(A), (B), or (C); or
(B) a secure correctional facility or secure detention facility, as defined by Section 51.02, Family Code.
(g) An offense under this section is a felony of the third degree.
(h) Notwithstanding Section 15.01(d), if a person commits the offense of criminal attempt to commit an offense under Subsection (a), (b), or (c), the offense committed under Section 15.01 is a felony of the third degree.
(i) It is an affirmative defense to prosecution under Subsection (b) that the actor:
(1) is a duly authorized member of the clergy with rights and privileges granted by an ordaining authority that includes administration of a religious ritual or ceremony requiring the presence or consumption of an alcoholic beverage; and
(2) takes four ounces or less of an alcoholic beverage into the correctional facility and personally consumes all of the alcoholic beverage or departs from the facility with any portion of the beverage not consumed.
(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.
(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, 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;
(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
(3) makes a payment to a communication common carrier, as defined by Article 18.20, Code of Criminal Procedure, or to any communication service that provides to its users the ability to send or receive wire or electronic communications.
Added by Acts 1991, 72nd Leg., 2nd C.S., ch. 10, Sec. 5.01, eff. Oct. 1, 1991. Renumbered from Penal Code Sec. 38.112 and amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994. Amended by Acts 1999, 76th Leg., ch. 362, Sec. 1, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 649, Sec. 1, eff. Sept. 1, 1999; Acts 2003, 78th Leg., ch. 470, Sec. 1 to 3, eff. Sept. 1, 2003.
Amended by:
Acts 2005, 79th Leg., Ch. 499, Sec. 1, eff. June 17, 2005.
Acts 2005, 79th Leg., Ch. 949, Sec. 48, eff. September 1, 2005.
Acts 2005, 79th Leg., Ch. 1092, Sec. 1, eff. September 1, 2005.
Reenacted and amended by Acts 2009, 81st Leg., R.S., Ch. 1169, Sec. 1, eff. September 1, 2009.
