Can a Mississippi municipal court punish a student caught with tobacco or a vape on school grounds when no other offense is involved?

Plain-English summary

A Pass Christian municipal court judge wrote in with a recurring case type. Local school resource officers were issuing citations to students under 21 caught with tobacco or vape products on school property. The cited students were not charged with any other offense. The judge wanted to know whether he had statutory authority to punish them for the standalone possession.

The AG's answer is no.

The statute is § 97-32-9. It contains two distinct sentences. The first sets a prohibition: no person under 21 shall purchase tobacco or alternative nicotine product, and no student of any high school, junior high, or elementary school shall possess tobacco or alternative nicotine on educational property as defined in § 97-37-17. The second creates the punishment regime: "If a person under twenty-one (21) years of age is found by a court to be in violation of any other statute and is also found to be in possession of a tobacco or alternative nicotine product, the court shall punish the minor as follows. . . ."

Read together, the prohibition exists but the criminal punishment hooks only fire when the minor is found in violation of another statute too. Standalone possession on school property is prohibited but unpunishable in court. There is no separate criminal sanction the judge can impose just for the school-property possession.

In effect, the legislature created a prohibition without a standalone court punishment. The opinion addresses only the municipal court's authority to charge and sentence; it does not address school discipline or any other non-criminal response.

The AG's reasoning is that the prohibition language and the punishment language are different things, and the statute limits punishment to the combined-violation scenario. The court has no authority to read in a punishment for the standalone possession.

What this means for you

If you are a Mississippi municipal or justice court judge handling student tobacco/vape cases

Under this opinion, you cannot charge and punish a student solely for possessing tobacco or an alternative nicotine product on educational property. The punishment provision in § 97-32-9 applies only when an under-21 person is found in violation of some other statute and is also found in possession of a tobacco or alternative nicotine product. If a citation alleges only the school-property possession with no other charge, the statute provides no punishment for the court to impose.

If you are a school resource officer or school administrator

Under this opinion, a citation issued solely for a student's possession of tobacco or a vape on school grounds, with no other statute charged, gives the municipal court no authority to punish. The AG reads § 97-32-9 to prohibit the possession but to attach court punishment only when the student is also found in violation of another statute. The opinion addresses only the court's authority; it does not address what school discipline may be available.

If you are a student or a parent of a student facing a § 97-32-9 citation

Under this opinion, if the only charge is possession of tobacco or a vape on school grounds with no other offense alleged, the court has no authority to punish, and the student may not be prosecuted and sentenced solely for that possession. The opinion speaks only to the criminal court's authority; it does not address school discipline, which operates under separate authority the opinion does not discuss.

Common questions

Q: Does the statute still prohibit students from possessing tobacco or vapes at school?
A: Yes. The AG is clear that § 97-32-9 prohibits a student from possessing tobacco or an alternative nicotine product on educational property. What it lacks is a court punishment for that possession standing alone.

Q: When can a court punish the tobacco or vape possession under § 97-32-9?
A: Only when an under-21 person "is found by a court to be in violation of any other statute and is also found to be in possession of a tobacco or alternative nicotine product." Both findings have to be present.

Q: Does this apply to college students?
A: The school-property possession prohibition in § 97-32-9 references a student "of any high school, junior high school or elementary school." The separate purchase prohibition applies to any person under 21.

Q: What is "educational property"?
A: § 97-32-9 ties the school-property prohibition to "educational property as defined in Section 97-37-17." The opinion does not separately spell out that definition.

Background and statutory framework

§ 97-32-9 is the centerpiece. The statute structure:

The first sentence prohibits purchase by anyone under 21.

The second sentence prohibits possession by students on educational property.

The "(a)" punishment section then applies only when an under-21 person "is found by a court to be in violation of any other statute and is also found to be in possession of a tobacco or alternative nicotine product." Both findings must be present.

§ 97-37-17 supplies the definition of "educational property" that § 97-32-9 incorporates for the school-property prohibition.

The AG's conclusion is that, because § 97-32-9 prescribes no punishment for the school-property possession standing alone, a minor "may not be prosecuted and sentenced solely for possessing tobacco or alternative nicotine product on educational property."

Citations

• Miss. Code Ann. § 97-32-9 (juvenile tobacco/alternative nicotine prohibition and punishment)
• Miss. Code Ann. § 97-37-17 (definition of "educational property")

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2023/01/L.Negrotto-IV-January-19-2023-Application-of-Mississippi-Code-Annotated-Section-97-32-9.pdf

Original opinion text

January 19, 2023
The Honorable Lewie G. "Skip" Negrotto IV
Municipal Court Judge, City of Pass Christian
220 East Scenic Drive, Suite 200
Pass Christian, Mississippi 39571
Re:

Application of Mississippi Code Annotated Section 97-32-9

Dear Judge Negrotto:
The Office of the Attorney General has received your request for an official opinion.

Background
You provide in your request that in your capacity as Pass Christian Municipal Court Judge, you
have had several students from the local school district before the court charged with possession
of either tobacco or alternative nicotine product on school grounds, which is prohibited by
Mississippi Code Annotated Section 97-32-9. Additionally, you are dealing only with possession
by a student on "educational property as defined in Section 97-37-17," the school resource officer
is issuing citations only to students on school property, all of whom are under age 21, and the
students are not charged with "a violation of any other statute."
Question Presented

Pursuant to Section 97-32-9, may a municipal court punish a student who is found to be in
possession of tobacco or alternative nicotine product on educational property?
Brief Response
Section 97-32-9 specifically prescribes punishment for persons under age twenty-one (21) who are
found to be in possession of tobacco or alternative nicotine product and found to be in violation of
any other statute, but there is no punishment for possession alone (emphasis added). Therefore, a
municipal court is not authorized to charge and punish a student solely for possessing tobacco or
alternative nicotine product on educational property.

Applicable Law and Discussion
Section 97-32-9 provides, in relevant part:
No person under twenty-one (21) years of age shall purchase any tobacco or
alternative nicotine product. No student of any high school, junior high school or
elementary school shall possess tobacco or alternative nicotine on any educational
property as defined in Section 97-37-17.
(a) If a person under twenty-one (21) years of age is found by a court to be in
violation of any other statute and is also found to be in possession of a tobacco
or alternative nicotine product, the court shall punish the minor as follows. . . .
(Emphasis added).
The statute prohibits students from possessing tobacco or alternative nicotine product on any
educational property as defined in Section 97-37-17; however, the criminal punishment prescribed
in Section 97-32-9 is limited to those persons under twenty-one (21) years of age who are found
by a court to be in violation of any statute other than Section 97-32-9 and who are also found to
be in possession of tobacco or alternative nicotine product. Section 97-32-9 does not provide
punishment for students who are found by a court to possess tobacco or alternative nicotine product
on educational property. Therefore, in accordance with Section 97-32-9, a minor may not be
prosecuted and sentenced solely for possessing tobacco or alternative nicotine product on
educational property.
If this office may be of any further assistance to you, please do not hesitate to contact us.
Sincerely,
LYNN FITCH, ATTORNEY GENERAL
By:

/s/ Abigail C. Overby
Abigail C. Overby
Special Assistant Attorney General