Call of the Week: Minor in Possession of Tobacco

By Benjamin Gibbs

As public opinion on tobacco has shifted, so, too, has the law on underage possession. In the 88^th legislature, there are bills introduced which would criminalize selling “alternative nicotine products” and certain flavors of tobacco to minors. See e.g., 88^th legislature, SB 920, HB 4481. These bills would punish sellers, not underage possessors of these products. As currently written, they will not change the law regarding possession of tobacco offenses under Section 161.252, or the deferral under Section 161.253. In that interest, here is a quick refresher on the law as to underage possession of tobacco, e-cigarettes, and tobacco products.

Upon conviction of a tobacco offense by a minor, the court shall suspend execution of the sentence and order attendance at an e-cigarette and tobacco awareness program. Because this occurs after conviction, the court should also determine an appropriate fine, not to exceed $100.

From the first codification of this offense in 1997 until the revision in 2019, subsequent offenses under this section had a higher maximum fine. Although this is no longer the case, there is a provision which echoes that. For a first conviction under Section 161.252, if the defendant completes the ordered course (or community service if the course is unavailable), the court shall discharge the defendant and dismiss the complaint. If the defendant completes the course, and the court discharges the defendant under this provision, all penalties and disabilities are released, including the fine and court costs. The only impact that will remain is that this will be considered a prior conviction for purposes of Section 161.253.

If the defendant has been previously convicted of an offense under Section 161.252, even if the conviction was previously dismissed after completion of an awareness program, the penalty is modified. If the defendant does not complete the program, the fine assessed upon conviction, up to $100, remains. If the defendant does complete the program, the fine may be reduced, at the discretion of the court, to not less than half of the amount previously imposed. This is not a reassessment of the fine but should be based upon the amount of the fine assessed at the time of conviction.

There is also a special expunction provision under Subchapter N. On or after the individual’s 21^st birthday, and for a fee of $30 per offense, the defendant may apply to have any number of convictions under Section 161.252 expunged. The expunction is mandatory if the defendant applies, and there is no requirement that the defendant have completed the required course under Section 161.253 before applying for expunction.