Q: In Texas, if a mother is drinking alcohol and smoking while she is pregnant, then can she be criminally charged?
A:
A mother has committed a crime in Texas if she "intentionally, knowingly, recklessly, or with criminal negligence, by act or omission, engages in conduct that places a child younger than 15 years in imminent danger of death, bodily injury, or physical or mental impairment."
Mere consumption of a drug or alcohol or tobacco while pregnant is not an offense. The consumption of a drug and alcohol is only "criminalized" if such consumption results in a child being placed in imminent danger of bodily injury. Excessive alcohol consumption is relevant in determining whether a parent engaged in endangering conduct. More commonly, other conduct--such as operating a motor vehicle--paired with excessive consumption is used as a basis for charging a mother with criminal conduct arising from drinking alcohol or using drugs while she is pregnant. I am unaware of any case in which a criminal charge was brought against a mother for smoking tobacco while pregnant. There are a few cases where a mother has smoked other substances such as methamphetamine, or smoked marijuana coupled with operating a motor vehicle while impaired.
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