Minor in Possession of Tobacco by Bo Kalabus

Texas Health & Safety Code, Sec. 161.252 prohibits the possession, purchase, consumption, or receipt of cigarettes or tobacco products by minors, hereinafter “MIP Tobacco”. The statute reads as follows:

(a) An individual who is younger than 18 years of age commits an offense if the individual:
(1) possesses, purchases, consumes, or accepts a cigarette or tobacco product; or

(2) falsely represents himself or herself to be 18 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 or tobacco product.

However, there are defenses to MIP Tobacco:

(b) It is an exception to the application of this section that the individual younger than 18 years of age possessed the cigarette or tobacco product in the presence of:
(1) an adult parent, a guardian, or a spouse of the individual; or

(2) an employer of the individual, if possession or receipt of the tobacco product is required in the performance of the employee’s duties as an employee.

(c) It is an exception to the application of this section that the individual younger than 18 years of age is participating in an inspection or test of compliance in accordance with Section 161.088.

If convicted the punishment is applied as follows:

(d) An offense under this section is punishable by a fine not to exceed $250.

However, tobacco awareness classes will also mostly likely be required. Texas Health & Safety Code, Sec. 161.253 governs the Tobacco Awareness Program; Community Service:

a) On conviction of an individual for an offense under Section 161.252 (possession of tobacco), the court shall suspend execution of sentence and shall require the defendant to attend a tobacco awareness program approved by the commissioner. The court may require the parent or guardian of the defendant to attend the tobacco awareness program with the defendant.

(b) On request, a tobacco awareness program may be taught in languages other than English.

(c) If the defendant resides in a rural area of this state or another area of this state in which access to a tobacco awareness program is not readily available, the court shall require the defendant to perform eight to 12 hours of tobacco-related community service instead of attending the tobacco awareness program.

(d) The tobacco awareness program and the tobacco-related community service are remedial and are not punishment.

(e) Not later than the 90th day after the date of a conviction under Section 161.252, the defendant shall present to the court, in the manner required by the court, evidence of satisfactory completion of the tobacco awareness program or the tobacco-related community service.

(f) On receipt of the evidence required under Subsection (e), the court shall:
(1) if the defendant has been previously convicted of an offense under Section 161.252, execute the sentence, and at the discretion of the court, reduce the fine imposed to not less than half the fine previously imposed by the court; or

2) if the defendant has not been previously convicted of an offense under Section 161.252, discharge the defendant and dismiss the complaint or information against the defendant.

(g) If the court discharges the defendant under Subsection (f)(2), the defendant is released from all penalties and disabilities resulting from the offense except that the defendant is considered to have been convicted of the offense if the defendant is subsequently convicted of an offense under Section 161.252 committed after the dismissal under Subsection (f)(2).

In short, under the current law, if a minor convicted of a first offense MIP Tobacco completes the tobacco awareness classes within the required 90 days, the charges against the minor are dismissed–unless the minor gets a subsequent MIP Tobacco. If the minor has a prior MIP Tobacco conviction, the sentence will be executed, but the judge has discretion to lower the fine.

Texas is very serious about the tobacco awareness classes. In fact, failure to complete the tobacco classes within the 90 day period can result in a driver’s license suspension.

Texas Health & Safety Code, Sec. 161.254. Driver’s License Suspension or Denial:

(a) If the defendant does not provide the evidence required under Section 161.253(e) within the period specified by that subsection, the court shall order the Department of Public Safety to suspend or deny issuance of any driver’s license or permit to the defendant. The order must specify the period of the suspension or denial, which may not exceed 180 days after the date of the order.

MIP Tobacco can turn into a serious problem. If you or a loved one is charged with MIP Tobacco, be sure to consult a lawyer to determine what your rights and options are.



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