Texas law holds minors accountable for possessing tobacco products as part of a public health effort to reduce youth nicotine addiction. Understanding these rules is important for teens and parents due to potential legal, educational, and personal consequences.
Classification of Offense
The Texas Health and Safety Code, under Section 161.252, outlines the state’s rules for underage tobacco possession.1Texas Public Law. Texas Health and Safety Code Section 161.252 – Possession, Purchase, Consumption, or Receipt of Cigarettes, E-cigarettes, or Tobacco Products by Minors Prohibited This law makes it an offense for individuals younger than 21 to possess, purchase, consume, or accept cigarettes, e-cigarettes, or other tobacco products, and is classified as a Class C misdemeanor. The age limit was increased from 18 in 2019, primarily to address rising e-cigarette use among young people.2Texas Legislature Online. Texas Senate Bill 21 (86R) – Enrolled Version Text
The law also makes it an offense if a minor falsely claims to be of legal age to obtain these products. Authorities can also cite for constructive possession, where a minor has control over a tobacco product even without direct ownership or physical possession. Federal law prohibits the sale of tobacco products to anyone under 21.3U.S. Food and Drug Administration. Prohibition of Sale of Tobacco Products to Persons Younger Than 21 Years of Age (Final Rule) Texas law aligns with this by making it illegal for those under 21 to possess tobacco, with a limited exception for individuals 18 or older who are in active U.S. or state military service.
Penalties
Violations of the underage tobacco possession law result in penalties, mainly a fine up to $100. While Class C misdemeanors in Texas can carry fines up to $500, the specific law for this offense sets a lower maximum.4Texas Public Law. Texas Penal Code Section 12.23 – Class C Misdemeanor
Courts order attendance at a state-approved e-cigarette and tobacco awareness program. These programs educate young people on tobacco risks and cessation. If a program is not available locally, community service may be required instead. In some instances, a parent or guardian might also be ordered to attend the awareness program with the minor.
For a first offense, successfully completing the program or community service leads to the court dismissing the complaint and all penalties, including fines and court costs. This dismissal is still considered a prior conviction if subsequent offenses occur.
Juvenile Court Process
Cases involving underage tobacco possession are handled in municipal and justice courts, not the formal juvenile system. The process starts when a law enforcement officer issues a citation for the violation, requiring a court appearance.
The court then sends a summons to the minor. Parents or guardians are often notified and may need to attend. Texas law requires a parent or guardian to accompany children aged 10 to 16 to court for these offenses, unless excused.5Justia Law. Texas Code of Criminal Procedure Article 45.0215 (2024) – Plea by Minor and Appearance of Parent While not mandated for those 17 or older, parental involvement is encouraged.
The first court appearance is the arraignment, where the judge reads the charge and the minor enters a plea: “guilty,” “not guilty,” or “nolo contendere” (no contest). A nolo contendere plea means the minor does not contest the charges, leading to a guilt finding without it being an admission of guilt in a separate civil suit. Minors can hire an attorney at their own expense; court-appointed attorneys are not provided for these misdemeanors where jail time is not a penalty.6Texas Public Law. Texas Code of Criminal Procedure Article 1.051 – Right to Representation by Counsel
A “not guilty” plea leads to a trial, often a bench trial where a judge decides the outcome. The prosecution must prove guilt beyond a reasonable doubt. The minor has the right to confront witnesses, present evidence, and testify or remain silent; silence is not an admission of guilt. The judge then delivers a verdict.
School Disciplinary Action
Possessing tobacco or e-cigarettes on school grounds or at school events also leads to school disciplinary actions. Texas law requires school districts to have policies prohibiting student possession of these products at any school-related activity, on or off campus.7Justia Law. Texas Education Code Section 38.006 (2024) – E-cigarettes and Tobacco Products on School Property
Disciplinary measures vary by district, as detailed in their student codes of conduct. State law mandates specific consequences for e-cigarette possession: any student found with an e-cigarette on school property or at a school event must be placed in a Disciplinary Alternative Education Program (DAEP).8Texas Education Agency. PEIMS Discipline Data Chart for Determining DAEP Placements and Expulsions (2024)
If DAEP space is unavailable, the student receives in-school suspension (ISS) and must transfer to a DAEP when a spot opens. These state rules for e-cigarette possession are part of local school conduct codes, which may also list other consequences like parental conferences or suspension for other tobacco offenses. Confiscated tobacco products are not returned.
Expungement Procedures
Texas law allows individuals charged with underage tobacco possession to clear the offense from their record through expungement. A specific path for this is outlined in the Texas Health and Safety Code.
To be eligible, an individual convicted of not more than one such violation while under 21 can apply to the original court. The application requires proof of identity and a $30 fee, or proof of inability to pay.9Texas Public Law. Texas Health and Safety Code Section 161.255 – Expungement of Conviction An individual may seek expungement if they are now 21 or older, or if the conviction was previously set aside or dismissed, often after completing a court-ordered program. If these conditions are met, the court orders the conviction and related documents expunged.
The Health and Safety Code provision offers a direct route for single, underage tobacco possession convictions. An expunction order legally requires the destruction of records related to the arrest and prosecution, allowing the individual to deny the incident occurred, with limited exceptions. The process involves filing a petition, which the court reviews before issuing an order.
Repeat Violations
Consequences for underage tobacco possession become more stringent for second or subsequent offenses. While a first offense may be dismissed after completing court requirements, this leniency does not apply to repeat violations.
State law clarifies that even a dismissed first charge is considered a prior conviction for new offenses.10FindLaw. Texas Health and Safety Code – Health & Safety § 161.252 Thus, individuals facing charges again are less likely to have cases dismissed, despite completing more programs or service.
A second or subsequent conviction remains on the individual’s record as a Class C misdemeanor. The fine, up to $100 per offense, can be levied for each violation. Repeated violations may affect future legal matters or background checks, as the focus shifts from education to more permanent, punitive outcomes.