I know we've discussed this before, maybe at our local legislative update, but...

A local drug user, from whom CPS has removed several children, just gave birth to another child Monday. Testing on this baby was positive for meth. Mom admitted using drugs recently as well. No evidence of injury yet. This really just seems like yet another in a long, sad line of drug babies that our society is producing.

I know we can't go under anything in Chapter 22 because of 22.12. Has anyone else brainstormed this and come up with another option for prosecution or are we just out of luck for these types of cases?

I am presenting a case to the grand jury next week on similar facts but I am charging the mom with delivery of a controlled substance to a child. H&S 481.122 (a 2nd degree felony) The Health and Safety code defines delivery as transfer to another. The Penal Code defines another as a person other than the actor and a person as an individual. An individual means an alive human from conception forward. Therefore, I believe that when a mother consumes a controlled substance, that substance is delivered to the child. There is no exempting language as to the mother in the Health and Safety Code.

Has anyone else tried Richard's idea? It seems to have promise. Let us all know how the case turns out.

I also noted in looking at the definitions, that "person" is defined differently in the Penal Code in 1.07(38) as opposed to the H&S Code (481.002(33), with the H&S Code including "government, business trust, estate, trust, partnership" and "other legal entity". Just curiousity, but any idea why?

The Penal Code definition of individual does not apply in the H & S Code unless there is a specific statute importing it.

This became clear back in the days of rewriting the Penal Code in 1993. We added provisions to the H & S Code, making it clear that the concepts of conspiracy and attempted offenses (described in the Penal Code) apply to drug offense. Without that provision, there were no attempted drug cases.

The Leg did not import the new definition of individual with drug cases. And, in the context of certain offenses, the Leg made it clear the new definition of individual (going back to conception) did not apply to a mother doing harm to her fetus.

By overriding that Leg madate, you risk making it bad for all of us if the Leg becomes irritated at prosecutors for abusing their discretion. There is very clear Leg history that they didn't want this new law used to go after mothers. Why not go back to the Leg and ask for the change in law (although it is doubtful they will approve it and questionable whether it is even a good idea)? Not all social problems should be addressed through the Penal Code.

And why can't you just prosecute mom for her possession of drugs? The presence of drugs in her system certainly supports the inference that she possessed them. We have successfully prosecuted on that theory.