Manufacture or Delivery of a Controlled Substance

If you have been charged with manufacture or delivery of a controlled substance in the State of Texas, this is always a serious allegation. This is a charge that goes beyond simple possession. The statute for manufacture or delivery is broad in its scope. This is because the law that penalizes the manufacture or delivery of a controlled substance also penalizes possession with intent to deliver. So, you don’t have to actually deliver or literally transfer the substance. Whether or not you feel like the case against you is strong or weak, it requires that you give serious attention to consulting with and retaining a criminal defense attorney. The penalties and the consequences of a criminal conviction are severe and can be long lasting.                      

What Will Happen?                   

What will happen in your specific case depends on the facts of your case. Manufacture or delivery of a controlled substance is a felony in Texas, regardless of the amount of the controlled substance. The penalties for manufacturing and delivery are outlined in Chapter 481 of the Texas Health and Safety Code. The types and kinds of controlled substances are listed there as well. And there are many types and kinds of controlled substances. However, marijuana is not considered a controlled substance. There are many aspects to this criminal charge that will be expanded in greater detail below. If you or a family member have been charged with manufacture or delivery of a controlled substance in Tarrant, Dallas, or Parker Counties, this is a criminal allegation not to be taken lightly. If you or a family member have been charged, call my office and I will talk with you about your case with you free of charge.             

What Do Manufacture and Delivery Mean?

These terms are defined in the Texas Health and Safety Code. When police discover controlled substances in the possession of a person, it is not always clear whether that person was selling or distributing, or simply using the substance for personal use. Law enforcement will be looking for things like how the substance is stored—for example, is there one container indicating personal use, or are several smaller containers perhaps indicating distribution? Police will be looking for other items as well such a scales for weighing and separating. Here are the definitions for Manufacture and Delivery from the Health and Safety Code:

“Manufacture” means 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 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.  

“Delivery” 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.

These terms cover both creating a controlled substance as well as providing the substance to another person. Note that there does not have to be any money exchanged or even an actual sale. As noted above, many of these charges cover possession with intent to deliver. This charge arises when police discover the controlled substances before delivery has been made, and often draw conclusions about intent to deliver based on individual packaging or other evidence.      

What are Penalty Groups?

All of the controlled substances are divided and grouped into four categories. These categories are referred to as penalty groups. There are different penalties for each group and the most severe penalties are in Group 1 and the least severe penalties are in Group 4. There are many, many controlled substances. The substances considered most dangerous and harmful are in Group 1. The substances in Group 1 are deemed to have little or no medical value and a very high potential for abuse. Many of the heavy substances that immediately come to mind when people think about illegal drugs are in Group 1. The substances in Group 1 consist of opiates, opium derivatives such as morphine and heroin as well as their isomers, esters, ethers, and salts. Group 1 also contains cocaine, methamphetamine, and ketamine. Group 2 consists of central nervous system stimulants such as amphetamines like Adderall, as well as hallucinogens such a mescaline and psilocybin that are not considered to be as habit forming as Group 1 substances. Penalty Group 3 substances consists of central nervous system depressants. Many are prescription drugs used to treat anxiety. These include benzodiazepines such as alprazolam and diazepam. Alprazolam (known also by its brand name, Xanax) is used to treat social anxiety and generalized anxiety, although it has a high potential for abuse and requires a prescription. Group 4 deals with compounds or mixtures that include substance such as codeine, which by itself is a Penalty Group 1 substance, but also contain active nonnarcotic ingredients that lend medical value.     

What are the Criminal Penalties for Manufacture or Delivery?

The criminal penalties will vary depending on which group the controlled substance falls under. Below is the statute for manufacturing or delivery of a substance in Penalty Group 1 because this is the most commonly charged penalty group. The implications of the law will be discussed below. The potential punishments of the other penalty groups vary slightly.

Section 481.112.

Manufacture of Delivery of Substance in Penalty Group 1.

  • 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.
  • An offense is a state jail felony if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants and dilutants, less than one gram.
  • An offense 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 and dilutants, one gram or more but less than four grams.
  • An offense 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 and dilutants, four grams or more but less than 200 grams.
  • An offense 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 and dilutants, 200 grams or more but less than 400 grams.
  • An offense 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 15 years and a fine not to exceed $250,000, if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, 400 grams or more.         

The penalties rise with the amount which is expressed in terms of weight in grams. The lowest charge which criminalizes amounts under one gram is a state jail felony. The most severe charge is for amounts that are over 400 grams. Also, if a child younger than 18 years old was present on the premises where the offense was committed, the offense increases by one degree.

What Do Adulterants and Dilutants Mean?   

These are material or ingredients that increase the bulk or quantity of the controlled substance. It does not matter if the added material impacts the chemistry or the substance. This can be best illustrated by example. Even though marijuana is not a controlled substance, imagine marijuana brownies. The aggregate weight of the flour, the sugar, the chocolate, the butter, and the eggs could all be considered adulterants or dilutants. As absurd as it may sound, the aggregate weight of all the brownies could be weighed and that weighted amount could dictate the charge. 

 

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