Drug-Free Zones

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Wednesday, October 10th, 2018
Drug-Free Zones

I. Relevant Statute—Tex. Health & Safety Code § 481.134

While not terribly long, the Texas drug-free-zone (DFZ) statute has some byzantine qualities, with numerous code cross-references that would make a tax attorney’s eyes glaze. Pull out your code book as you read this article for maximum comprehension of the intricacies of the DFZ statute. The most important question in terms of our clients’ interests are the statute’s effects . . .

II. Statutory Consequences, Effects, and Other Bad Stuff

There are, of course, many consequences to any criminal conviction, and this article does not attempt to enumerate them all. Rather, this article focuses on a defendant facing a DFZ allegation for the first time and the most serious consequences of the addition of a DFZ finding to a con­trolled-substance conviction.

A. Offense level increases
Subsections (b), (d), (e), and (f) provide for level in­creases in punishment range if the base offense is committed within specified areas. Specifically listed second-degree felonies become first-degree felonies; state jail felonies become third-degree felonies; Class A misdemeanors become state jail felonies; and Class B misdemeanors become Class A misdemeanors.

 Each of these subsections increases the maximum pun­ishment for the predicate offense; while no specific case has addressed the effect of Apprendi v. New Jersey on these subsections, it seems clear that application of Apprendi means that in order to seek the increased maximum punishment, the State is required to prove the DFZ allegation as an element of the offense. This also means that the State is required to allege the DFZ allegation as part of the indictment, which gives rise to a multitude of possible charging errors for which to be on the lookout.1
 It is important to note that Subsection (b) is worded a bit differently than the other subsections. While the other subsections increase the penalty range when certain enumerated conditions are met “on the trial of the offense,” § 481.134(b) specifically states that it applies “if it is shown at the punishment phase of the trial.” Subsection (b)’s zone definition is also different than the other subsections, and the chosen language could, therefore, reflect a choice by the Legislature to dictate that DFZ evidence is irrelevant at guilt-innocence for those specific offenses; if accepted, the effect of Apprendi could be to render application of §481.134(b) unconstitutional.
 Another important detail derives from the effects of § 481.134(e), which provides for increasing certain offenses from Class A misdemeanors to state jail felonies. Since misdemeanors are, except in certain limited circumstances, outside the jurisdiction of district courts, and more particularly, since felonies are outside the jurisdiction of county courts/county courts-at-law, the addition of (or lack of) a Subsection (e) DFZ allegation is jurisdictional in nature.

B. Increased mandatory minimum sentence!
Unlike its counterparts, which provide for offense level in­creases, Tex. H&S Code § 481.134(c) provides for increased minimum mandatory sentences that are draconian at the very least. The minimum sentence for any offense falling within that subsection is increased by five years, and the maximum fine is doubled, with the DFZ finding treated as a sentencing enhancement rather than as a substantive element of the offense. This means that the minimum punishment for a third-degree or second-degree felony offense goes from 2 years up to 7 (yes, seven) years!
 This five-year enhancement is tacked on after all other sentencing enhancements are added—meaning, for example, that someone convicted of a third-degree felony with affirmative DFZ finding who has two prior felony convictions is subject to a minimum 30-year sentence instead of the usual 25-year minimum.

C. Offense level increase PLUS increased minimum?!
For combinations of a few DFZ areas (“the premises of a public or private youth center or a playground”) and a few specific predicate offenses (§ 481.112(c), § 481.113(c), § 481.114(c), and § 481.120(b)(4)), both the offense level increase of § 481.134(b) and the increased minimum enhancement of § 481.134(c) appear to apply, increasing these offenses from second-degree felonies to enhanced first-degree felonies with a punishment range of life or 10–99 years plus a fine of up to $20,000. Given that closely related conduct (i.e., predicate offenses within 1,000 feet of an institution of higher learning or a “school”) does not fall within this overlap, there’s a good argument to be made that this language resulted from indelicate legislative drafting, and that the result of applying both the offense-level increase and the enhancement would constitute “cruel and unusual punishment.”

D. MANDATORY STACKING!
§ 481.134(h) provides for mandatory consecutive sentencing for any DFZ sentence “with punishment for a conviction under any other criminal statute.” However, this doesn’t mean that any other conviction must be stacked; convictions for offenses that are listed in § 481.134 (whether the other conviction actually involves a DFZ) are still subject to the concurrent-sentencing provisions of Tex. H&S Code § 481.132 whether or not the sentences arise from the same transaction or as a result of separate proceedings. Moore v. State, 371 S.W.3d 221 (Tex. Crim. App. 2012); Williams v. State, 253 S.W.3d 673 (Tex. Crim. App. 2008); Merritt v. State, 252 S.W.3d 757 (Tex. App.—Texarkana 2008).2

E. MINIMUM TIME TO BE SERVED
An ancillary consequence regarding DFZs is a dictated minimum term of service prior to eligibility for parole. Tex. Gov’t Code § 508.145(e) provides that an individual “serving a sentence for which the punishment is increased under Section 481.134, Health and Safety Code, is not eligible for release on parole until the inmate’s actual calendar time served, without consideration of good conduct time, equals five years or the term to which the inmate was sentenced, whichever is less.”
 This means that if a defendant is sentenced to the in­sti­tutional division with the increase under Section 481.134, (s)he will serve at least every day of the first five years of the sentence, regardless of good conduct time credits. A conviction for an offense that would normally be a state jail felony but that becomes a third-degree felony would result in no parole availability until at least five years have been served—meaning that sentences of 2 to 5 years will not be subject to parole. Sentences that are increased to first-degree felonies, or for which the minimum sentence is increased five years (or both), would be incarcerated for a minimum of five of those years. Given the annual average cost of incarceration of $22,012 per inmate (as of 2015— more recent numbers are likely higher), the increased penalties plus mandatory period of incarceration could cost taxpayers over $100,000 per defendant.3 Note that probation eligibility isn’t affected; a defendant facing a third-degree felony with a sentencing range of 7–10 years is still probation-eligible.4

III. What Does the State Have to Prove to Get Such Harsh Sentences?

Whether dealing with offense-level increases that must be pled as an element of the offense per Apprendi or with sentencing enhancements, the State is required to prove that the DFZ increase/enhancement applies per the statutory language. Generally, there are three required parts for the State to prove a DFZ increase/enhancement applies: (1) that the offense was committed within (2) a given distance of (3) a sensitive place. One thing that the State is specifically not required to prove is that a defendant knew he was within a DFZ. See Bridges v. State, 2014 WL 7204720 (Tex. App.—Amarillo 2014).

A. Sensitive places
For purposes of this article, “sensitive place” includes any of the specific places used in § 481.134. Most, but not all, of the specific places—“institution of higher education,” “public swimming pool,” “video arcade facility,” and “youth center”—are generally associated in the statute with the term “premises,” which includes all “real property and buildings and appurtenances” pertaining thereto. Even when used without the term “premises,” there is generally some reference to “real property.” The net effect is that for these sensitive places, the State must simply provide some evidence, which can be as little as an officer’s statement that a location is a sensitive place, that the location meets one of the statutory definitions. See, e.g., White v. State, 59 S.W.3d 368 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d & reh’g on pet. denied) (officer’s testimony that school was present on church premises sufficient to support conviction); Young v. State, 14 S.W.3d 748 (Tex. Crim. App. 2000) (officers’ testimony that premises was school sufficient); Hastings v. State, 20 S.W.3d 786 (Tex. App.—Amarillo 2000, pet. ref’d) (testimony that premise was named “Wheatley Elementary School” combined with officer’s testimony that it was school was sufficient). One important consideration is that for most sensitive places, they satisfy the statutory definition regardless of whether they are in session or not.
 It is also worth noting that the various DFZ provisions providing offense-level increases for drug offenses around schools and institutions of higher learning include not only the educational facilities themselves but any real property “owned, rented, or leased” by either a school/school board or an institution of higher learning.5

B. Distance
For most sensitive places, the very definition of the sensitive place includes all real property thereof; the appropriate place for the State to measure is therefore from the closest property line. Whether dealing with the 1,000-foot DFZ (included in all relevant subsections of § 481.134) or with the 300-foot DFZ (§ 481.134(b)(2)), the State may rely on any evidence that satisfies the Texas Rules of Evidence on the question, including officers’ measurements, aerial photographs, expert testimony, and the like.
 In addition to standard evidence, including ordinary maps, the statute provides for the creation of maps “produced or reproduced by a municipal or county en­gineer for the purpose of showing the location and boundaries of drug-free zones.” Tex. H & S Code § 481.135. Such maps are required to be filed with the county clerk, and are in and of themselves not only admissible, but constitute prima facie evidence as to where the edge of a drug-free zone lies. Be sure to check for these maps with the county clerk if you handle any drug cases.

C. Conduct Occurred Within the DFZ
The State must also show that the transaction complained of—the defendant’s possession, manufacture, delivery, or possession with intent to deliver—occurred either actually or constructively within the DFZ. It is insufficient to show that negotiations for a delivery took place within a DFZ when the actual delivery took place outside the DFZ unless there is evidence that the defendant intended to make delivery via a non-law enforcement agent intermediary to an individual located within the DFZ. See Villalobos v. State, 2006 WL 566464 (Tex. App.—Amarillo 2006). Importantly, this case demonstrates that when a delivery takes place outside a DFZ to one posing as an intermediary who is either an undercover officer or an informant acting on behalf of law enforcement, the offense is complete upon the initial delivery, and the DFZ is not implicated.

III. Statutory Definitions

A. Sensitive place definitions, in relevant part6

1. “Premises”: real property and all buildings and appurtenances pertaining to the real property. Note that this definition is distinctly different from the definition of “premises” as related to possession of firearms and other weapons on school property.

2. “Institution of higher education”: any public or private technical institute, junior college, senior college or university, medical or dental unit, or other agency of higher education as defined by Section 61.003, Education Code.

3. “School”: a private or public elementary or secon­dary school, or a day-care center, as defined by Section 42.002, Human Resources Code.
 Note that private schools are included here; disputes could arise, e.g., regarding whether private homes when used for home schooling qualify, especially in light of obiter dicta reaching that conclusion expressed in White v. State, 59 S.W.3d 368 (Tex. App.—Houston [1st Dist.] 2001).

a. “Day-care center”: a child-care facility that provides care at a location other than the residence of the director, owner, or operator of the child-care facility for seven or more children under 14 years of age for less than 24 hours a day, but at least two hours a day, three or more days a week.

b. “Child-care facility”: a facility licensed, certified, or registered by the department [of Family and Protective Services] to provide assessment, care training education, custody, treatment, or supervision for a child who is not related . . . to the owner or operator of the facility.
 Note: There is a reported case—and instructive on matters a defense counsel should investigate—which has indicated that the State is not required to provide evidence of licensing, certification, or registration absent some evidence that a facility is operating without such. Haagensen v. State, 346 S.W.3d 758 (Tex. App—Texarkana 2011).

4. “Video arcade facility”: any facility open to the public, including persons 17 years of age or younger, that is intended primarily for the use of pinball or video machines, and contains at least three such machines.
 The provision that the facility be open to the public is of paramount importance; the State’s failure to establish that a facility is open to the public at large may result in acquittal; see “playground,” infra.

5. “Youth center”: any recreational facility or gymnasium that is intended primarily for use by persons who are 17 years of age or younger, and regularly provides athletic, civic or cultural activities.
 This term has a certain amount of vagueness deriving from the “regularly provides” language, with no guidance given on how regularly such activities must be offered at such a facility. YMCAs/YWCAs and other similar facilities are clearly targeted by this provision, but some prosecutorial resources suggest that facilities which would not otherwise be “youth centers” may suddenly qualify during certain times of the year, such as during summers (or, conversely, perhaps during a school year) when activities tailored towards youth might be conducted with some regularity.

6. “Playground”: any outdoor facility that is not on the premises of a school and that is intended for recreation, is open to the public, and contains three or more play stations intended for the recreation of children, such as slides, swing sets, and teeterboards.
 This provision suffers from some vagueness inasmuch as there is no specific association with a term indicating an association with particular real estate or how extensive such a relationship might be. An overreaching prosecutor might argue that an area 50-feet square containing some playground equipment would, as a result, make the entire 3-square-block park on which said area is located a sensitive place for DFZ purposes.
 Additionally, as with “video arcade facility,” the requirement that a facility be open to the public is highly important. See, e.g., Ingram v. State, 213 S.W.3d 515 (Tex. App.—Texarkana 2007) (State’s failure to demonstrate that the “public at large had access or permission to use” an outdoor recreational area with the requisite equipment resulted in insufficient evidence to support a DFZ offense level increase).

B. Drug-Free Zones
There are three basic combinations of the foregoing places (plus one that is undefined but relatively straightforward) from which DFZs themselves are defined. Additionally, some terms appear in more than one subsection. There is a slight difference between the second and third DFZ definition, since offense level increases for relatively minor possession or manufacture, delivery, or possession with intent to deliver offenses are possible around any real property in which a school dis­trict has some right of possession, whereas the five-year enhancement is restricted to the real property of an actual educational facility.

1. DFZs relative to manufacture, delivery, or possession with intent to deliver offenses that would ordinarily be state jail felonies or second-degree felonies are increased one offense level (§481.134(b)):

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.

2. DFZs relative to any manufacture, delivery, or possession with intent to deliver offenses and any possession offenses except for penalty group 1A that would, prior to application of § 481.134, be third-degree felony or higher offenses: These are subject to the five-year increased minimum and doubled fine if the enhancement is proven (§ 481.134(c)):

In, on, or within 1,000 feet of the premises of a school, the premises of a public or private youth center, or a playground, or on a school bus.

3. DFZs relative to manufacture, delivery, or possession with intent to deliver offenses and any possession offenses that would ordinarily be misdemeanors or state jail offenses. Note that there is overlap between some of the place/offense combinations included in this definition and the definition in paragraph (1), above, though for these combinations the net effect (SJF–>3rd) is the same (§ 481.134(d), (e), & (f)):

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

4. Places excluded from the definition of DFZs:
The only places within DFZs for which otherwise-enhanceable conduct is nevertheless excluded from the application of § 481.134 are those identified in subsection (g): private residences, so long as (1) no minor is present, and (2) the offense is one identified in § 481.134(f) (i.e., possession of a penalty group 4 substance less than one gram; possession of a miscellaneous controlled substance; possession of two ounces or less of marijuana; or delivery of less than a quarter ounce of marijuana without remuneration).
 Since this provision is worded as a “does not apply” provision, this has the effect of operating as a de­fense to prosecution. See Tex. Pen. Code § 2.03. The Legislature is increasingly making efforts to create what it intends to be exceptions to prosecution for a variety of offenses, but because it consistently fails to properly invoke the language of TPC § 2.02, these efforts all result in creating defenses rather than exceptions. (See, e.g., H.B. 989, 84th Leg., Reg. Session, 2015).

IV. Recent Changes

One should always keep in mind that nothing is safe while the Legislature is in session. Following are some recent changes that apply to the general discussion of DFZs:

30.02—burglary

  • What is otherwise a state jail felony becomes a third-degree felony if a person enters the building or remains concealed in the building with the intent to commit theft of a controlled substance

30.04—burglary of a vehicle

  • What is otherwise a Class A misdemeanor becomes a state jail felony if a person enters into the vehicle with the intent to commit theft of a controlled substance

Tex. H&S 481.1191

  • Putting “not for human consumption” is not a defense to civil liability for the ingestion of a synthetic sub­stance

Tex. H&S 481.1131

  • Provides a civil cause of action where providing, selling, or serving synthetic cannabinoids where proof of intoxication on the same of the recipient was the proxi­mate cause of damages (like a dram-shop act for synthetic cannabinoids)

Tex. H&S 481.103(d)

  • This subsection, which previously provided a defense to prosecution for either possession or manufacture/delivery of a controlled substance in PG2 where the substance had been approved by the FDA, has been removed

Penal Code 22.021(vi)

  • Removed a list of specific date-rape drugs and replaced it with the following: “any substance capable of impairing the victim’s ability to appraise the nature of the act or to resist the act.”

V. Parting Thoughts

Because of the complexity of the statute, the foregoing is focused only on first-time offenders of drug-free zones. A defendant with prior criminal history may be subject to en­hance­ments that increase the offense level before the ap­pli­cation of § 481.134; if so, those enhancements apply before application of § 481.134(c).

 Texas Code Crim. Proc. Art. 42A.054(14)(B) also comes into play if a citizen accused has a prior conviction with a DFZ finding. If this situation applies, and the defendant is charged with a new offense under subsections (c)–(f), then the new offense is one for which probation is not available. Bottom line: Be careful of the intricacies and read the statute every time!

Notes

1. While there appears to be no Apprendi case dealing with the specific issue, the few pre-Apprendi cases that consider the appropriate point at which the State should prove the DFZ issue determined that the State has discretion to prove it in either phase of trial. See, e.g., Harris v. State, 125 S.W.3d 45 (Tex. App.—Austin 2003, pet. dism’d), citing Hastings v. State, 20 S.W.3d 786 (Tex. App.—Amarillo 2000, pet. ref’d). Apprendi appears to curtail the State’s discretion to require proof during guilt-innocence.

2. When evaluating whether the mandatory consecutive sentence provision applies, one must take care to ensure that the other offense of conviction involves an offense that is listed in § 481.134; for instance, § 481.1151, possession of a penalty group 1A substance, is for some inexplicable reason not mentioned.

3. Given these costs to taxpayers, there is some irony in the fact that a TDCAA paper written on DFZs describes the minimum time of service provision in the following language: “Not that many statutes give you that kind of bang for your buck!”

4. Even for the DFZ-enhanced third-degree felony, the maximum period of community supervision is five years. Tex. Code Crim. Proc. Art. 42A.053.

5. See § 481.134 (b), (d)–(f).

6. Some minor alterations/streamlining of statutory language and/or omission of outline form is incorporated for readability. The reader is always encouraged to verify the statutory language as definitions are apt to change with the whims of the Legislature.