Drug Free Zones

Texas law sets out certain drug free zones as explained in Health and Safety Code, Sec. 481.134. Drug crimes committed in these zones are subject to enhanced penalties. In some cases, the State will argue that the enhancements should apply even through the person accused did not know that the offense was committed in a drug free zone. Altlhough the issue is not well settled in Texas, the prosecution will often argue that Section 481.134 does not set forth a mens rea requirement separate from the mens rea required to prove delivery of a controlled substance.

The enhances penalties can make the crime much more serious. In some cases, the enhancement can increase the level of penalty by one level. The enhancement might also require the judge to run the sentence consecutively with all other sentences.

The enhancement can also impact the right to parole in a important way because under Texas Government Code 508.1459(e), the first five years of the prison sentence must be served day for day. If the prison sentence for a qualifying offense committed in a drug free zone is less than five years, then parole is not available at all.


Class A Misdemeanor Enhancement

A class A misdemeanor enhancement applies if it can be shown during the punishment phase of the trial that the drug crime was committed:

  • in, on, or within 1,000 feet of any real property that owned, rented, or leased to a school or school board or the premises of a public or private youth center; or
  • on a school bus.

The class A misdemeanor enhancements apply under the following circumstances:

  • the offense was committed within a private residence; and
  • no minor was present in the private residence at the time the offense was committed.

The class A misdemeanor enhancements apply under the following circumstances:

  • Possession of Substance in Penalty Group 4 of less than twenty-eight grams;
  • Manufacture, Delivery, or Possession of a Substance not listed in a penalty group;
  • Delivery of Marihuana of one-fourth ounce or less and the person committing the offense receives remuneration for the marihuana;
  • Possession of Marihuana of four ounces or less but more than two ounces.

State Jail Felony Enhancement

The state jail felony enhancement applies if the prosecution shows at the punishment phase of the trial that the drug offense was committed:

  • in, on, or within 1,000 feet of any real property that is owned, rented or leased to a school or school board or the premises of a public or private youth center; or,
  • on a school bus.

The state jail felony enhancement applies to the following drug crimes:

  • Possession of Substance in Penalty Group 3 of less than twenty-eight grams;
  • Manufacture, Delivery, or Possession of a Substance not listed in a penalty group;
  • Delivery of Marihuana of one-fourth ounce or less and the person committing the offense receives remuneration for the marihuana;
  • Possession of Marihuana of four ounces or less but more than two ounces.

Third Degree Felony Enhancement

A third degree felony enhancement applies if the prosecution shows at the punishment phase of the trial that the drug offense was committed:

  • in, on, or within 1,000 feet of any real property that is owned, rented or leased to a school or school board or the premises of a public or private youth center; or
  • on a school bus.

The third degree felony enhancement Applies to the following offenses:

  • Manufacture or Delivery of Substance in Penalty Group 1 of less than one gram;
  • Manufacture or Delivery of Substance in Penalty Group 2 of less than one gram;
  • Manufacture or Delivery of Substance in Penalty Groups 3 or 4 of less than twenty-eight grams;
  • Possession of Substance in Penalty Group 1 of less than one gram;
  • Possession of Substance in Penalty Group 2 of less than one gram;
  • Delivery of Marihuana of more than one-fourth ounce;
  • Possession of Marihuana of more than one-fourth ounce.

Five Year Increase in Statutory Minimum Penalty

For some offenses, the statutory minimum penalty is enhanced by five years and the statutory maximum fine is doubled. This sentencing enhancement applies to the following offenses:

  • Manufacture or Delivery of Substance in Penalty Group 1 of one gram or more;
  • Manufacture or Delivery of Substance in Penalty Group 2 of one gram or more;
  • Manufacture or Delivery of Substance in Penalty Groups 3 or 4 of twenty-eight grams or more;
  • Possession of Substance in Penalty Group 1 of one gram or more;
  • Possession of Substance in Penalty Group 2 of one gram or more;
  • Possession of Substance in Penalty Group 2-A of more than five pounds;
  • Possession of Substance in Penalty Group 3 of twenty-eight grams or more;
  • Possession of Substance in Penalty Group 4 of twenty-eight grams or more;
  • Delivery of Marihuana of more than five pounds;
  • Possession of Marihuana of more than five pounds.

The five-year increase in the statutory maximum penalties apply if the prosecution shows at the punishment phase of the trial that the drug offense was committed:

  • in, on, or within 1,000 feet of premises of a school or a public or private youth center; or,
  • on a school bus. 

Drug Penalties Enhanced One-Level

For certain types of offenses, if the crime occurs in a drug free zone then the statutory maximum penalties are increased by one level. For instance, a state jail felony is enhanced to a third degree felony or a third degree felony is enhanced to a second degree felony. 

The one-degree enhancements apply to the following offenses:

  • Manufacture or Delivery of Substance in Penalty Group 1;
  • Manufacture or Delivery of Substance in Penalty Group 2;
  • Possession of Substance in Penalty Group 2-A;
  • Manufacture or Delivery of Substance in Penalty Groups 3 or 4;
  • Delivery of Marihuana.

 In order for this enhancement to apply, the prosecutor must show at the punishment phase of the trial that the offense was committed:

  • in, on, or within 1,000 feet of premises owned, rented, or leased by an institution of higher learning, the premises of a public or private youth center, or a playground; or
  • in, on, or within 300 feet of the premises of a public swimming pool or video arcade facility.

This article was last updated on Thursday, December 29, 2016.

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