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In a new twist on a law that defines a fetus as a person, an Amarillo, Texas, woman is scheduled to go to trial today for delivering cocaine to her baby while it was still in her womb. S.B. 319, passed by the Texas Legislature in 2003, changed the definition for an individual in the Penal Code and Civil Practice and Remedies Code to include “an unborn child at every stage of gestation from fertilization until birth.” The purpose of the change, according to an analysis by the Senate Research Center, is to allow a person who harms or kills an unborn child to be criminally prosecuted or sued by the child’s parents. Joe Dawson, attorney for Tracy Ward, says Potter County, Texas, prosecutors believe they can prosecute a woman for ingesting a controlled substance that affects her unborn child. “The Legislature did not intend for women to be prosecuted like this,” says Dawson, a partner in Storrs, Pirtle & Dawson in Amarillo. Rebecca King, district attorney for the 47th District, says the Legislature may not have intended it but that she believes the change in the definition of an individual requires such prosecutions. “I don’t think I have a right to ignore something,” King says. Potter County is prosecuting Ward under Health and Safety Code 481.122, which makes it a second-degree felony to deliver a controlled substance or marijuana to a child younger than 18. The indictment that a 320th District Court grand jury returned against Ward last year charges the 29-year-old woman with knowingly delivering cocaine to her son, Roger, on Oct. 31, 2003. King says the baby, who now lives with relatives, tested positive for cocaine at birth. Scott Gilmore, chief of staff for state Rep. Ray Allen, R-Grand Prairie, House sponsor of S.B. 319, says the Legislature included language in the Penal Code and the Civil Practice and Remedies Code that makes it inapplicable in either a criminal prosecution or a civil action to the conduct of the unborn child’s mother so that the law would not apply to a woman having an abortion. “The law does not apply to a mother’s conduct,” Gilmore says. But King says the Legislature did not include an exception for the mother’s conduct in the Health and Safety Code. “It can’t matter what somebody thought he was passing, thought he was voting on,” King says. “The clear reading of the statute is there. When somebody knowingly delivers a controlled substance to a child, then that’s that.” THE DELIVERY ISSUE University of Texas School of Law professor Robert O. Dawson, who teaches criminal law, says the new definition of an individual in the Penal Code has to apply unless there is some reason it should not apply. If it’s absurd or it doesn’t make sense to apply the definition to the Health and Safety Code provision, then it shouldn’t be applied, he says. “Under the [U.S. Constitution], a mother has a right to abort a child,” the law professor says. Robert Dawson says an abortion would be more harmful to the child than if its mother takes drugs. Prosecuting a woman for delivering a controlled substance to her unborn child is “totally inconsistent with the whole philosophy underlying abortion,” he says. Another issue, Robert Dawson says, is the meaning of “delivery” under the Health and Safety Code. “What clearly seems to be contemplated with delivery is either the sale or gift [of a controlled substance] from one person to another,” he says. “That’s not what happened here. It really is an ideological prosecution.” King says she has no agenda. “I did not jump up and click my heels and say, “Here we go,’ after reading the law,” she says. “It was, “Oh my God.’” Robert Dawson says if King is right about the law, every time a pregnant woman smokes a joint or pops a pill, she commits a felony. “Give me a damn break,” he says. “Would the Legislature really intend that? Would the Legislature intend to take something that, at most, would be a state jail felony with a maximum two-year sentence and turn it into a second-degree felony?” If convicted of delivering a controlled substance to a child, Ward faces from two to 20 years in prison. Joe Dawson filed a motion on June 29 to bar prosecution of Ward. Among other arguments in the motion, Dawson contends that the state is barred from prosecuting Ward by applying a statute where the legislative intent was to exclude Ward as a class of persons subject to prosecution. Dawson also argues in the motion that the district attorney is prosecuting Ward for a non-existent offense. However, the defense attorney says that 320th District Judge Don Emerson, who presides over the case, doesn’t have authority to dismiss the case without the prosecution’s consent, which will not be given. “It’s difficult to fashion an attack against this charge against [Ward],” Joe Dawson says. “If you just look at the four corners of the indictment against Ward, it plainly sets out an offense.” Joe Dawson says his only choice is to try the case and appeal if Ward is convicted. “Basically, all I’m doing is setting the thing up for the appellate folks — whoever that might be — to write on,” he says. Gilmore says Allen will seek a legal opinion on the matter from Texas Attorney General Greg Abbott Notes Gilmore, “If the attorney general thinks changes are needed to be made [in the law], certainly we will do that in the next session, but I don’t think that will happen.”

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