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Possession of a Controlled Substance in Texas

Possession of a controlled substance in Texas is classified into penalty groups, which are based on the legislature’s beliefs about risks of abuse and whether or not there are accepted medical uses for a drug. A conviction for a drug charge will result in a one year license suspension if you are under 21. If you are over 21, a drug conviction will result in a six-month license suspension. If your driver license was suspended for a drug-related offense, you will need to complete a 15-hour Drug Education Program before DPS will reinstate your license.

What is a Controlled Substance in Texas?

A controlled substance is a drug or chemical whose use and distribution is tightly controlled because of its abuse potential or risk.

Punishment Ranges, Drug Categories, and Drug Penalty Groups in Texas

Your potential punishment range for Texas drug crimes, like possession of controlled substance, depends on which penalty group the drug falls into, the quantity of drugs, whether there is an allegation of distribution, and your criminal history.  Notice that some drugs like hydrocodone appear in more than one penalty group based on quantity.

Is Probation Mandatory for a First-Time Drug Offense in Texas?

Pursuant to Code of Criminal Procedure 42.551, probation is mandatory for a person convicted of a State Jail Felony who has no prior felony convictions, if the current charge is for:

  • Possession of a Controlled Substance u/1 Gram Penalty Group 1 481.115(b)
  • Possession of a Controlled Substance under 5 units, Penalty Group 1-A 481.1151(b)(1)
  • Possession of a Controlled Substance u/1Gram Penalty Group2 481.116(b),
  • Possession of a Controlled Substance 4oz to 5 lbs, Penalty Group 2-A 481.1161(b)(3)
  • Possession of a Marijuana 4oz to 5 lbs, 481.121(b)(3)
  • Possession a Prescription Form, 481.129(g)(1)

Probation for these offenses is not mandatory if the person had a previous felony conviction or was already on deferred for this offense.

Common Abbreviations in Drug Cases

POCS PG 1 Possession of a Controlled Substance Penalty Group 1
POCS PG 1-A Possession of a Controlled Substance Penalty Group 1-A
POCS PG 2 Possession of a Controlled Substance Penalty Group 2
POCS PG 2-A Possession of a Controlled Substance Penalty Group 2-A
POCS PG 3 Possession of a Controlled Substance Penalty Group 3
POCS PG 4 Possession of a Controlled Substance Penalty Group 4
DFZ Drug Free Zone
POMu2 Possession of Marijuana under 2 Oz

Common Examples from Each Penalty Group in Texas:

Penalty Group 1

Most opiates and opiate derivatives fall into Penalty Group 1 including:

  • Cocaine
  • Crack
  • Heroin
  • Methamphetamine
  • Special K – Ketamine
  • Oxycontin (Oxycodone)
  • GHB
  • Hydrocodone over 300 grams (including in Vicodin)
  • Fentanyl

Possession of Controlled Substance Penalty Group One (PG1) Offense Level Punishment Range
Less than one gram State jail felony 180 days to 2 years in a state jail and/or a fine of not more than $10,000
1 gram or more, less than 4 grams Third Degree 2 to 10 years in a state prison and/or a fine of not more than $10,000
4 grams or more, but less than 200 grams Second Degree 2 to 20 years in a state prison and/or a fine of not more than $10,000
200 grams or more, but less than 400 grams First Degree 5 to 99 years in a state prison or life, and a fine of not more than $100,000
400 grams or more Enhanced First Degree 10 to 99 years or life, and a fine of not more than $100,000

Penalty Group 1-A

  • Acid – LSD
Possession of Controlled Substance Penalty Group 1-A (PG1-A) Offense Level Punishment Range
Fewer than 20 units State jail felony 180 days to 2 years in a state jail and/or a fine of not more than $10,000
20 or more units, but less than 80 units Third Degree 2 to 10 years in a state prison and/or a fine of not more than $10,000
80 units or more, but less than 4,000 units Second Degree 2 to 20 years in a state prison and/or a fine of not more than $10,000
4,000 units or more, but less than 8,000 unites First Degree 5 to 99 years in a state prison or life, and a fine of not more than $100,000
8,000 unites or more Enhanced First Degree 15 to 99 years or life, and a fine of not more than $250,000

Penalty Group 2

 

Most hallucinogens fall into Penalty Group 2, including:

  • MDMA, Molly, Ecstasy
  • Bath Salts (Many bath salts)
  • Adderall (Dextroamphetamine)
  • PCP (Phencyclidine, Angel Dust)
  • Mescaline (Peyote)
  • Mushrooms (Psilocybin)
  • Proposed legislation: Flakka (alpha-PVP)
  • THC (Tetrahydrocannabinol); see CBD Oil Prosecution in Texas
  • “Analogs” of the penalty group 2 drugs (designer drugs that are chemically similar to a listed drug and that produce similar effects)
Possession of Controlled Substance Penalty Group 2 (PG2) Offense Level Punishment Range
Less than one gram State jail felony 180 days to 2 years in a state jail and/or a fine of not more than $10,000
1 gram or more, less than 4 grams Third Degree 2 to 10 years in a state prison and/or a fine of not more than $10,000
4 grams or more, but less than 400 grams Second Degree 2 to 20 years in a state prison and/or a fine of not more than $10,000
400 grams or more Enhanced first-degree felony 5 to 99 years in a state prison and/or a fine of not more than $50,000

Penalty Group 2-A

  • Synthetic Marijuana (Spice, K2, other synthetic cannabinoids)
Possession of Controlled Substance Penalty Group 2-A (PG 2-A) Offense Level Punishment Range
Less than two ounces Class B misdemeanor 0-180 days in county jail and up to $2,000 fine
2 ounces or more but less than 4 ounces Class A misdemeanor 0-1 year in county jail, and up to $4,000 fine
4 ounces or more but less than 5 pounds State jail felony 180 days to 2 years in a state jail and/or a fine of not more than $10,000
5 pounds ore more but less than 50 pounds Third Degree 2 to 10 years in a state prison and/or a fine of not more than $10,000
50 pounds or more, but less than 2,000 pounds Second Degree 2 to 20 years in a state prison and/or a fine of not more than $10,000
2,000 pounds ore more Enhanced first-degree felony 5 to 99 years in state prison or life, and a fine not to exceed $50,000

Penalty Group 3

Stimulants in Penalty Group 3 include:

  • Valium
  • Xanax (Alprazolam)
  • Clonazepam
  • Diazepam
  • Hydrocodone  less than 15mg/dose or less than 300 mg
  • Codeine less than 90mg/dose
  • Lorazepam
  • Zolpidem
  • Ritalin
  • Testosterone
  • HGH (Human Growth Hormone)
Possession of Controlled Substance Penalty Group 3 (PG-3) Offense Level Punishment Range
Less than 28 grams Class A misdemeanor 0-1 year in county jail, and up to $4,000 fine
28 grams or more, but less than 200 grams Third Degree 2 to 10 years in a state prison and/or a fine of not more than $10,000
200 grams or more, but less thanÊ 400 grams Second Degree 2 to 20 years in a state prison and/or a fine of not more than $10,000
400 grams or more Enhanced first-degree felony 5 to 99 years in state prison or life, and a fine not to exceed $50,000

Penalty Group 4

Narcotics in Penalty Group 4 include:

  • Opium
  • Morphine
  • Motofen
  • Dangerous Drugs
Possession of Controlled Substance Penalty Group 4 (PG4) Offense Level Punishment Range
Less than 28 grams Class B Misdemeanor 0-180 days in county jail and up to $2,000 fine
28 grams or more, but less than 200 grams Third Degree 2 to 10 years in a state prison and/or a fine of not more than $10,000
200 grams or more, but less thanÊ 400 grams Second Degree 2 to 20 years in a state prison and/or a fine of not more than $10,000
400 grams or more Enhanced first-degree felony 5 to 99 years in state prison or life, and a fine not to exceed $50,000

Under Texas Health and Safety Code §481.115-118, an individual can be charged with the offense of possession of a controlled substance if they knowingly or intentionally possess any of the substances listed in the Penalty Group I-IV without a valid prescription from a doctor, including drugs, dangerous drugs, chemicals, narcotics, stimulants, prescription pills, medications, synthetic substances and natural substances.

Common defenses for Texas drug crimes stem from improper searches and seizures, as well as issues that arise during the chain of custody of the evidence. There are a number of diversion programs in most counties, both for the first time offender and for offenders who are ready to make a substantial change in their lives.

Manufacture Delivery of a Controlled Substance

An allegation of delivery or manufacture of controlled substance in Texas carries stiffer penalty ranges than allegations of possession of a controlled substance. These offenses are codified in Texas Health and Safety Code beginning at Section 481.112.

What is delivery manufacture controlled substance in Texas?

“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 includes offering to sell a controlled substance, counterfeit substance, or drug paraphernalia.

Delivery can be actual or constructive. An example of actual delivery is hand-to-hand delivery. Constructive delivery could be giving someone access to a storage unit that contains drugs.

What is possession with the intent to deliver in Texas?

Possession with the intent to deliver carries the same punishment range as manufacturing or actually delivering a controlled substance in Texas. Possession with the intent to deliver cases are often alleged that way based on circumstantial evidence such as how the drugs were packaged, the presence of notes or text messages that suggest a sale, or the presence of items like scales and baggies.

Manufacture Delivery of a Controlled Substance Penalty Group 1

Drug Amount Offense Level Punishment Range Fine Range
Under 1 gram State Jail 180 days – 2 years State Jail Fine up to $10,000
1-4 grams Second Degree 2-20 years in Prison Fine up to $10,000
4-200 grams First Degree 5-99 years or life in Prison Fine up to $10,000
200-400 grams First Degree 10-99 years or life in Prison Fine up to $100,000
Over 400 grams First Degree 15-99 years or life in Prison Fine up to $250,000

Manufacture Delivery of a Controlled Substance Penalty Group 1A

Drug Amount Offense Level Punishment Range Fine Range
Less than 20 units State Jail 180 days – 2 years State Jail Fine up to $10,000
20-79 units Second Degree 2-20 years in Prison Fine up to $10,000
80-3,999 units First Degree 5-99 years or life in Prison Fine up to $10,000
4,000 units or more First Degree 15-99 years or life in Prison Fine up to $250,000

Manufacture Delivery of a Controlled Substance Penalty Group 2

Drug Amount Offense Level Punishment Range Fine Range
Under 1 gram State Jail 180 days – 2 years State Jail Fine up to $10,000
1-4 grams Second Degree 2-20 years in Prison Fine up to $10,000
4-400 grams First Degree 5-99 years or life in Prison Fine up to $10,000
Over 400 grams First Degree 10-99 years or life in Prison Fine up to $100,000

Manufacture Delivery of a Controlled Substance Penalty Group 2A

Drug Amount Offense Level Punishment Range Fine Range
Under 1 gram State Jail 180 days – 2 years State Jail Fine up to $10,000
1-4 grams Second Degree 2-20 years in Prison Fine up to $10,000
4-400 grams First Degree 5-99 years or life in Prison Fine up to $10,000
Over 400 grams First Degree 10-99 years or life in Prison Fine up to $100,000

Manufacture Delivery of a Controlled Substance Penalty Group 3

Drug Amount Offense Level Punishment Range Fine Range
Under 28 grams State Jail 180 days – 2 years State Jail Fine up to $10,000
28 grams to 200 grams Second Degree 2-20 years in Prison Fine up to $10,000
200-400 grams First Degree 5-99 years or life in Prison Fine up to $10,000
Over 400 grams First Degree 10-99 years or life in Prison Fine up to $100,000

Manufacture Delivery of a Controlled Substance Penalty Group 4

Drug Amount Offense Level Punishment Range Fine Range
Under 28 grams State Jail 180 days – 2 years State Jail Fine up to $10,000
28 grams to 200 grams Second Degree 2-20 years in Prison Fine up to $10,000
200-400 grams First Degree 5-99 years or life in Prison Fine up to $10,000
Over 400 grams First Degree 10-99 years or life in Prison Fine up to $100,000

Manufacture Delivery of a Controlled Substance Penalty Group 1: Presence of Child

The punishment ranges are further enhanced if it is shown that a child under the age of 18 was present at the time of the manufacture of a substance in Penalty Group 1.