Comment

Comprehensive Offense. Tex. Penal Code § 38.11 is designed to prevent the possession of numerous items in correctional facilities, civil commitment facilities, or on property owned, used, or controlled by either. It prohibits the possession of such items within these properties (Tex. Penal Code § 38.11(d), (j), (j–1)), the taking of such items into these properties (Tex. Penal Code § 38.11(b), (c)), the providing of such items to someone within them (Tex. Penal Code § 38.11(a)), and activities done outside these properties with the intent to provide such items to someone within them (Tex. Penal Code § 38.11(a), (k)). Although most of this conduct can be committed by anyone, some provisions apply only to confinees/residents. See, e.g., Tex. Penal Code § 38.11(j) (prohibiting possession of cellular phones by those confined). Importantly, the legislature treats all of the prohibited conduct equally; every offense is a third-degree felony. Tex. Penal Code § 38.11(g). Moreover, the legislature overrode the usual "one category lower" rule for an attempt to commit the prohibited conduct such that, with some exceptions, an attempt to violate section 38.11 is also a third-degree felony. Tex. Penal Code § 38.11(h).

Lack of Mental State. Despite this comprehensive regulation of acts related to items in these facilities, the statute requires proof of attendant mental states in very few instances. Subsection (a) prohibits inter alia "possess[ion] with the intent to provide" commonly prohibited items, and subsection (k) prohibits enumerated activity "with the intent to provide or make . . . available" a wireless communication device. Tex. Penal Code § 38.11(a), (k). But no other provision in section 38.11 requires proof of a particular mental state. This includes (1) the acts of providing, taking, and possessing; (2) any awareness of the nature of the thing itself; or (3) awareness of the nature of the location. These gaps create potential problems for multiple reasons.

First, many of the prohibited items are not inherently unlawful to possess or provide, like cellular phones and money. Others, like deadly weapons, alcohol, and cigarettes, are subject to some restriction outside the location, but most adults can readily purchase or possess them. Offenses that make commonplace activities illegal only because of a surrounding circumstance—the literal surroundings, in this case—typically require at least proof of a mental state of recklessness that the circumstance exists. See McQueen v. State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989) ("[W]here otherwise innocent behavior becomes criminal because of the circumstances under which it is done, a culpable mental state is required as to those surrounding circumstances."). Although one's presence in a qualifying facility should be apparent, that may not be the case for presence on property owned, used, or controlled by a facility.

Second, even criminalizing the possession of items that are inherently contraband, like controlled substances and dangerous drugs, usually requires proof that the actor knew or was reckless as to the nature of the thing possessed. This offense does not.

Third, some members of the Committee were concerned that inadvertent provision of money or a cellular phone by a forgetful, visiting defense attorney or facility employee could be punished.

Multiple Approaches. It could be that the legislature decided public policy favored placing the onus on those entering sensitive, regulated facilities to ensure that they do not introduce items with destabilizing potential. See Celis v. State, 416 S.W.3d 419, 425–26 (Tex. Crim. App. 2013) (plurality) (declining to require additional mental states for falsely holding oneself out as a lawyer because that field's "regulation is intended to protect the public from untrained individuals, who endanger the public's personal and property rights, as well as the orderly administration of the judicial system"). Although this rationale is typically applied to the actor's status rather than location, the underlying concern with the public's wellbeing is no less present. Dispensing with additional mental states would also remove the possibility that someone could avoid liability by remaining willfully ignorant about the contents of a package he possesses or provides to someone in a facility. At least as it pertains to manners of commission involving specific intent, "the lack of express language requiring an additional mens rea with respect to other elements is a ‘compelling' indication that the Legislature did not intend an additional culpable mental state." White v. State, 509 S.W.3d 307, 311 (Tex. Crim. App. 2017).

For the sake of consistency, both internally and with other offenses, the Committee decided that a mental state should be attached in all cases to (1) the surrounding circumstance, i.e., location, (2) the nature of the item, and (3) the conduct. It is probably unnecessary to do all three. This offense is primarily a "circumstances" offense; any need to provide a mental state as per Tex. Penal Code § 6.02(b) would be satisfied by requiring at least recklessness about whether a qualifying facility is involved. Tex. Penal Code § 6.02(c). However, the fact that only select items are covered by the offense militates in favor of requiring knowledge of the nature of the item possessed in all circumstances, not just when it is contraband (as would be required outside the facility). As for the acts themselves, requiring that an actor be at least reckless about his provision, taking, or possession prevents claims of unfairness from inadvertent actors. It would also avoid disparate treatment for "providing," which arguably entails a greater degree of intentionality. In practice, it will not always be necessary to set out each of these three mental states individually. For example, providing a prohibited substance will not require a separate element for knowledge because the definition for knowingly providing a prohibited substance will require that the actor be aware he is providing that substance. Possession, on the other hand, will require a separate element for knowledge or recklessness of the nature of the thing possessed.

A minority of the Committee believed that this latter concern would be adequately addressed by the requirement that these acts be done voluntarily—an admittedly low bar. See Brown v. State, 89 S.W.3d 630, 632–33 (Tex. Crim. App. 2002) (reviewing conviction under section 38.11(b) and concluding that someone who admitted to knowingly possessing marijuana at the time he was arrested and taken to jail voluntarily possessed it in a correctional facility).