A drug conviction can have serious consequences. A drug conviction can bar you from receiving federal student aid. A drug offense conviction in Texas results in an automatic 180 day driver license suspension (there are some situations where longer periods of suspension occur)  or if you don’t have a license, the Texas Department of Public Safety is barred from issuing you a license for 180 days after you are convicted of a drug offense. (Texas Transportation Code 521.372). (Note:  a plea to deferred adjudication is not a conviction unless there has been an adjudication of guilt.) A drug conviction can bar you from certain professions and employment and can affect your housing options.  If you are accused of a drug offense, you should contact an experienced criminal defense attorney as soon as possible to plan your defense and to explore your options.

There are defenses to drug charges. While law enforcement frequently arrests everyone in the car or home where drugs are found, the prosecutor must prove beyond a reasonable doubt a charge that you knowingly or intentionally had actual care, custody, control or management of a drug before it can win a conviction. Merely being present in a car or home where drugs are found is not sufficient for a conviction. 

Another defense to a drug charge is that the search and seizure were illegal. The Fourth Amendment to the United States Constitution protects persons from unreasonable searches and seizures. Generally, there is a right to refuse or to not consent to a law enforcement search of your person, home or vehicle, and law enforcement must have probable cause that a crime has been committed before conducting a search.  If it is found that law enforcement conducted an illegal search, without first obtaining a warrant, and without consent or any of the other circumstances which justify a warrantless search, the evidence seized as part of the search will be suppressed and will not be admissible as evidence against you at trial.  

LAW RELATED TO DRUG OFFENSES

 

Drug related offenses in Texas are contained within the Controlled Substances Act which is located in Chapters 481 of the Texas Health and Safety Code, as wells as in Chapters 482 through 486 of the Texas Health and Safety Code. The Texas Health and Safety Code regulates the possession, possession with intent to deliver, manufacture and delivery of the many drugs placed on the Texas Schedules of Controlled Substances contained in the Texas Health and Safety Code.  The degree of the offense prosecuted in Texas depends on the type of drug involved, the amount of the drug involved, and the action taken with the drug. Also, aggravating factors such as whether an offense is alleged to have occurred in a Drug Free Zone, such as near a school, can increase the punishment.

Possession, Delivery and Manufacture

The Texas Health and Safety Code in Section 481.002 contains definitions for the terms "possession", “delivery” and “manufacture.” “Possession” is defined as “actual care, custody, control, or management”. A prosecutor has to prove at trial that a person intentionally or knowingly had actual care, custody, control or management of the drugs. Merely being present where drugs are present is not possession and is not sufficient for a conviction. If you did not know that the drugs were there, you are not guilty of possession.

The term “deliver” means “to transfer, actually or constructively, to another a controlled substance, counterfeit substance, or drug paraphernalia, regardless of whether there is an agency relationship“. The term “deliver” includes offering to sell a controlled substance, counterfeit substance, or drug paraphernalia, while "delivery" or "drug transaction" means the act of delivering.

“Manufacture" is defined as “the production, preparation, propagation, compounding, conversion, or processing of a controlled substance other than marijuana, directly or indirectly by extraction from substances of natural origin, independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes the packaging or repackaging of the substance or labeling or relabeling of its container'. However, the term “manufacture” does not include the preparation, compounding, packaging, or labeling of a controlled substance by a practitioner as an incident to the practitioner's administering or dispensing a controlled substance in the course of professional practice, or by a practitioner, or by an authorized agent under the supervision of the practitioner, for or as an incident to research, teaching, or chemical analysis and not for delivery.

Drug Penalty Groups

With the exceptions of a few drugs such as marijuana, Spice and K2, drugs for which the possession, possession with intent to deliver, manufacture or sale are illegal, or are illegal under certain circumstances (such as the possession or sale of prescription drugs by unauthorized persons) are classified into Penalty Groups, of which there are five (1, 1-A, 2, 3 and 4).  The Penalty Groups relate to the relative seriousness of the drug, and set forth the punishment classifications for drugs depending in which Penalty Group they fall.  

Drugs contained within Penalty Group 1 are set forth in Texas Health and Safety Code Section 481.102 and include among other drugs cocaine, methamphetamine, oxycodone, ketamine, GHB, opium and opiates not listed in another penalty group (thus including heroine in penalty group 1) rohypnol.

Penalty Group 1-A contains LSD among other drugs.  (Texas Health and Safety Code Section 481.1021),

Drugs contained with Penalty Group 2 are set forth in Texas Health and Safety Code 481.103 and include among other drugs MDMA, MDM, , PCP (Phencyclidine), amphetamine, Psyloctbin, Mescaline, Ecstasy, and synthetic hallucinogenic substances (not including marijuana, spice or K2),

Drugs contained in Penalty Group 2A include synthetic chemical compounds mimicking the pharmalogical effect of naturally occurring cannabinoids, or essentially synthetic marijuana.

Drugs in Penalty Group 3 include Clonazepam, Diazepam (Valium), Lorazepam, Pentobarbital, Phwnobarbital, Xanax, Ritalin as well as others set forth in Texas Health and Safety Code Section 481.104 (without a valid prescription).

Drugs in Penalty Group 4 are set forth in Texas Health and Safety Code Section 481.105 and include some of the drugs listed in earlier Penalty Groups, as does Penalty Groupd 3, when they are present in very small concentrations. 

Punishments for Drug Offenses

Marijuana

Punishment classifications for the possession and delivery of marijuana appear in Sections 481.120 and 481.121 of the Texas Health and Safety Code (which spells marijuana as “marijuana”) which are set forth as follows: 

Sec. 481.120.  OFFENSE:  DELIVERY OF MARIJUANA.

(a)  Except as authorized by this chapter, a person commits an offense if the person knowingly or intentionally delivers marijuana./

(b)  An offense under Subsection (a) is:

(1)  a Class B misdemeanor if the amount of marijuana delivered is one-fourth ounce or less and the person committing the offense does not receive remuneration for the marijuana;

(2)  a Class A misdemeanor if the amount of marijuana delivered is one-fourth ounce or less and the person committing the offense receives remuneration for the marijuana;

(3)  a state jail felony if the amount of marijuana delivered is five pounds or less but more than one-fourth ounce;

(4)  a felony of the second degree if the amount of marijuana delivered is 50 pounds or less but more than five pounds;

(5)  a felony of the first degree if the amount of marijuana delivered is 2,000 pounds or less but more than 50 pounds; and

(6)  punishable by imprisonment in the Texas Department of Criminal Justice for life or for a term of not more than 99 years or less than 10 years, and a fine not to exceed $100,000, if the amount of marijuana delivered is more than 2,000 pounds.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.  Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 2.02, eff. Sept. 1, 1994.

Amended by:

Acts 2009, 81st Leg., R.S., Ch. 87 (S.B. 1969), Sec. 25.104, eff. September 1, 2009.

Sec. 481.121.  OFFENSE:  POSSESSION OF MARIJUANA.

(a)  Except as authorized by this chapter, a person commits an offense if the person knowingly or intentionally possesses a usable quantity of marijuana.

(b)  An offense under Subsection (a) is:

(1)  a Class B misdemeanor if the amount of marijuana possessed is two ounces or less;

(2)  a Class A misdemeanor if the amount of marijuana possessed is four ounces or less but more than two ounces;

(3)  a state jail felony if the amount of marijuana possessed is five pounds or less but more than four ounces;

(4)  a felony of the third degree if the amount of marijuana possessed is 50 pounds or less but more than 5 pounds;

(5)  a felony of the second degree if the amount of marijuana possessed is 2,000 pounds or less but more than 50 pounds; and

(6)  punishable by imprisonment in the Texas Department of Criminal Justice for life or for a term of not more than 99 years or less than 5 years, and a fine not to exceed $50,000, if the amount of marijuana possessed is more than 2,000 pounds.

Section 481.119 of the Texas Health and Safety Code addresses punishments for offenses involving drugs (controlled substances) not listed in a penalty group and which aren’t marijuana.

Sec. 481.119. OFFENSE: MANUFACTURE, DELIVERY, OR POSSESSION OF MISCELLANEOUS SUBSTANCES.

(a) A person commits an offense if the person knowingly manufactures, delivers, or possesses with intent to deliver a controlled substance listed in a schedule by an action of the commissioner under this chapter but not listed in a penalty group. An offense under this subsection is a Class A misdemeanor, except that the offense is: (1) A  state jail felony, if the person has been previously convicted of an offense under this subsection; or (2) A felony of the third degree, if the person has been previously convicted two or more times of an offense under this subsection. (b)A person commits an offense if the person knowingly or intentionally possesses a controlled substance listed in a schedule by an action of the commissioner under this chapter but not listed in a penalty group. An offense under this subsection is a Class B misdemeanor.

Penalty Group 1

Punishments and punishment classifications related to drugs in Penalty Group 1 are set forth as follows in Texas Health and Safety Code Sections 481.112 and 481.115

Sec. 481.112.  OFFENSE:  MANUFACTURE OR DELIVERY OF SUBSTANCE IN PENALTY GROUP

(a)  Except as authorized by this chapter, a person commits an offense if the person knowingly manufactures, delivers, or possesses with intent to deliver a controlled substance listed in Penalty Group 1.

(b)  An offense under Subsection (a) is a state jail felony if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, less than one gram.

(c)  An offense under Subsection (a) is a felony of the second degree if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, one gram or more but less than four grams.

(d)  An offense under Subsection (a) is a felony of the first degree if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, four grams or more but less than 200 grams.

(e)  An offense under Subsection (a) is punishable by imprisonment in the Texas Department of Criminal Justice for life or for a term of not more than 99 years or less than

Sec. 481.115.  OFFENSE:  POSSESSION OF SUBSTANCE IN PENALTY GROUP 1.

(a)  Except as authorized by this chapter, a person commits an offense if the person knowingly or intentionally possesses a controlled substance listed in Penalty Group 1, unless the person obtained the substance directly from or under a valid prescription or order of a practitioner acting in the course of professional practice.

(b)  An offense under Subsection (a) is a state jail felony if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, less than one gram

(c)  An offense under Subsection (a) is a felony of the third degree if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, one gram or more but less than four grams.

(d)  An offense under Subsection (a) is a felony of the second degree if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, four grams or more but less than 200 grams.

(e)  An offense under Subsection (a) is a felony of the first degree if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, 200 grams or more but less than 400 grams.

(f)  An offense under Subsection (a) is punishable by imprisonment in the Texas Department of Criminal Justice for life or for a term of not more than 99 years or less than 10 years, and a fine not to exceed $100,000, if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, 400 grams or more.

Penalty Group 1-A

Punishments and punishment classifications related to drugs in Penalty Group 1-A are set forth as follows in Texas Health and Safety Code Sections 481.1121 and 481.1151: 

Sec. 481.1121.  OFFENSE:  MANUFACTURE OR DELIVERY OF SUBSTANCE IN PENALTY GROUP 1-A.

 (a)  Except as provided by this chapter, a person commits an offense if the person knowingly manufactures, delivers, or possesses with intent to deliver a controlled substance listed in Penalty Group 1-A.

(b)  An offense under this section is:

(1)  a state jail felony if the number of abuse units of the controlled substance is fewer than 20;

(2)  a felony of the second degree if the number of abuse units of the controlled substance is 20 or more but fewer than 80;

(3)  a felony of the first degree if the number of abuse units of the controlled substance is 80 or more but fewer than 4,000; and

(4)  punishable by imprisonment in the Texas Department of Criminal Justice for life or for a term of not more than 99 years or less than 15 years and a fine not to exceed $250,000, if the number of abuse units of the controlled substance is 4,000 or more.

Sec. 481.1151.  OFFENSE:  POSSESSION OF SUBSTANCE IN PENALTY GROUP 1-A. 

(a)  Except as provided by this chapter, a person commits an offense if the person knowingly possesses a controlled substance listed in Penalty Group 1-A.

(b)  An offense under this section is:

(1)  a state jail felony if the number of abuse units of the controlled substance is fewer than 20;

(2)  a felony of the third degree if the number of abuse units of the controlled substance is 20 or more but fewer than 80;

(3)  a felony of the second degree if the number of abuse units of the controlled substance is 80 or more but fewer than 4,000;

(4)  a felony of the first degree if the number of abuse units of the controlled substance is 4,000 or more but fewer than 8,000; and

(5)  punishable by imprisonment in the Texas Department of Criminal Justice for life or for a term of not more than 99 years or less than 15 years and a fine not to exceed $250,000, if the number of abuse units of the controlled substance is 8,000 or more.

Penalty Groups 2 and 2-A

Punishments and punishment classifications related to drugs in Penalty Group 2 and  2A are set forth as follows in Texas Health and Safety Code Sections 481.113, 481.116 and 481.1161: 

Sec. 481.113.  OFFENSE:  MANUFACTURE OR DELIVERY OF SUBSTANCE IN PENALTY GROUP 2 OR 2-A.

(a)  Except as authorized by this chapter, a person commits an offense if the person knowingly manufactures, delivers, or possesses with intent to deliver a controlled substance listed in Penalty Group 2 or 2-A.

(b)  An offense under Subsection (a) is a state jail felony if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, less than one gram.

(c)  An offense under Subsection (a) is a felony of the second degree if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, one gram or more but less than four grams.

(d)  An offense under Subsection (a) is a felony of the first degree if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, four grams or more but less than 400 grams.

(e)  An offense under Subsection (a) is punishable by imprisonment in the Texas Department of Criminal Justice for life or for a term of not more than 99 years or less than 10 years, and a fine not to exceed $100,000, if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, 400 grams or more.

Sec. 481.116.  OFFENSE:  POSSESSION OF SUBSTANCE IN PENALTY GROUP 2. 

(a)  Except as authorized by this chapter, a person commits an offense if the person knowingly or intentionally possesses a controlled substance listed in Penalty Group 2, unless the person obtained the substance directly from or under a valid prescription or order of a practitioner acting in the course of professional practice.

(b)  An offense under Subsection (a) is a state jail felony if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, less than one gram

(c)  An offense under Subsection (a) is a felony of the third degree if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, one gram or more but less than four grams.

(d)  An offense under Subsection (a) is a felony of the second degree if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, four grams or more but less than 400 grams.

(e)  An offense under Subsection (a) is punishable by imprisonment in the Texas Department of Criminal Justice for life or for a term of not more than 99 years or less than five years, and a fine not to exceed $50,000, if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, 400 grams or more.

Sec. 481.1161.  OFFENSE:  POSSESSION OF SUBSTANCE IN PENALTY GROUP 2-A.

(a)  Except as authorized by this chapter, a person commits an offense if the person knowingly possesses a controlled substance listed in Penalty Group 2-A, unless the person obtained the substance directly from or under a valid prescription or order of a practitioner acting in the course of professional practice.

(b)  An offense under this section is:

(1)  a Class B misdemeanor if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, two ounces or less;

(2)  a Class A misdemeanor if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, four ounces or less but more than two ounces;

(3)  a state jail felony if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, five pounds or less but more than four ounces;

(4)  a felony of the third degree if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, 50 pounds or less but more than 5 pounds;

(5)  a felony of the second degree if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, 2,000 pounds or less but more than 50 pounds; and

(6)  punishable by imprisonment in the Texas Department of Criminal Justice for life or for a term of not more than 99 years or less than 5 years, and a fine not to exceed $50,000, if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, more than 2,000 pounds.

Penalty Groups 3 and 4

The punishment and punishment classifications for drugs in Penalty Groups 3 and 4 are identical for the offenses of manufacture and delivery, and are set forth in Texas Health and Safety Code Section 481.114.  The punishments and punishment classifications for the offense of possession for Penalty Groups 3 and 4 are set forth in Texas Health and Safety Code Sections 481.117 and 481.118, respectively.

Sec. 481.114.  OFFENSE:  MANUFACTURE OR DELIVERY OF SUBSTANCE IN PENALTY GROUP 3 OR 4. 

(a)  Except as authorized by this chapter, a person commits an offense if the person knowingly manufactures, delivers, or possesses with intent to deliver a controlled substance listed in Penalty Group 3 or 4.

(b)  An offense under Subsection (a) is a state jail felony if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, less than 28 grams.

(c)  An offense under Subsection (a) is a felony of the second degree if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, 28 grams or more but less than 200 grams.

(d)  An offense under Subsection (a) is a felony of the first degree, if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, 200 grams or more but less than 400 grams.

(e)  An offense under Subsection (a) is punishable by imprisonment in the Texas Department of Criminal Justice for life or for a term of not more than 99 years or less than 10 years, and a fine not to exceed $100,000, if the amount of the controlled substance to which the offense applies is, by aggregate weight, including any adulterants or dilutants, 400 grams or more.

Sec. 481.117.  OFFENSE:  POSSESSION OF SUBSTANCE IN PENALTY GROUP 3.

(a)  Except as authorized by this chapter, a person commits an offense if the person knowingly or intentionally possesses a controlled substance listed in Penalty Group 3, unless the person obtains the substance directly from or under a valid prescription or order of a practitioner acting in the course of professional practice. (b)  An offense under Subsection (a) is a Class A misdemeanor if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, less than 28 gramS. (c)  An offense under Subsection (a) is a felony of the third degree if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, 28 grams or more but less than 200 grams. (d)  An offense under Subsection (a) is a felony of the second degree, if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, 200 grams or more but less than 400 grams. (e)  An offense under Subsection (a) is punishable by imprisonment in the Texas Department of Criminal Justice for life or for a term of not more than 99 years or less than five years, and a fine not to exceed $50,000, if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, 400 grams or more.

Sec. 481.118.  OFFENSE:  POSSESSION OF SUBSTANCE IN PENALTY GROUP 4.

(a)  Except as authorized by this chapter, a person commits an offense if the person knowingly or intentionally possesses a controlled substance listed in Penalty Group 4, unless the person obtained the substance directly from or under a valid prescription or order of a practitioner acting in the course of practice. (b)  An offense under Subsection (a) is a Class B misdemeanor if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, less than 28 grams. (c)  An offense under Subsection (a) is a felony of the third degree if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, 28 grams or more but less than 200 grams. (d)  An offense under Subsection (a) is a felony of the second degree, if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, 200 grams or more but less than 400 grams. (e)  An offense under Subsection (a) is punishable by imprisonment in the Texas Department of Criminal Justice for life or for a term of not more than 99 years or less than five years, and a fine not to exceed $50,000, if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, 400 grams or more.

If you need an attorney for a drug matter, call the office of Hernandez & Hernandez at (915) 838-0338 to arrange your free consultation.