When do you include the zone on the indictment? (b),(d),(e), and (f) enhance the degree of criminal charge. What about (c)?

If the minimum term of confinement is enhanced, must you include a paragraph on the indictment to notify the defendant of the Drug-Free Zone?

Notes:

(b) enhances SJF's to 3rd's and 2nd's to 1st's on: 481.112, 113, 114, and 120 which are all Man/Del of PG's 1-4 and Del of Marihuana.

(c) requires a minimum term of confinement of 5 years on all poss/man/del charges PG 1-4 2nd deg charges or higher and all felony Poss/Del charges on Marihuana

(d) enhances SJF Man/Del/Poss charges to a 3rd deg. Seems duplicative with (b) but it adds 'school bus' and straight possession charges.

(e)bumps various misdemeanors to SJFs. (obviously to establish jurisdiction the enhancement paragraph is needed.)

I don't know who wrote the DFZ codes, but they deserve an award for it. Reread (c). It says the minimum term is INCREASED BY 5 years, not set at 5 years (so you can have a range of 7-10 years!). I don't think it is required notice in the indictment, but isn't that the easiest way? I base that on the ability to plead deadly weapon enhancements and priors in separate pleadings, then it stands to reason that you could enhance in a separate pleading as well. But, you should know when the case comes in whether you have a DFZ (rather, your cops should know), so just include it in the indictment language from the start.

The Austin court ruled that 481.134(d) creates a separate offense, for constitutional (due process; trial by jury) purposes, with the added "element" that the offense occurs within a DFZ. See Harris v. State, 125 S.W.3d 45 (Tex. App.-Austin 2003) The issue was whether the evidence could come in a guilt-innocence; the court ruled that it has to.

If 481.134(d) is a different offense from typical (SJF) one-rock delivery, I think it has to be treated differently from a typical enhancement allegation (such as a prior conviction or use of a DW). In that case, I think the DFZ allegation has to be in the indictment, otherwise you won't be effectively alleging all of the elements of the crime charged.

Because of the language the court keyed in on in Harris, its logic probably extends to 481.134(e) and (f) as well.

As a matter of habit, I include a paragraph in the indictment whenever I am aware that the crime is committed within a drug-free zone.

I always put it in the indictment as a second paragraph and plead it as broadly as possible. Example: "And it is further presented in and to said Court that the Defendant committed the above offense in, on, or within one thousand (1,000) feet of real property owned by, rented to or leased to a school or school board, namely Joe Blow High School, 1111 Road, City, State"