Possession of a Controlled Substance

Have you been arrested for possession of a controlled substance in Tarrant County? There are many controlled substances in Texas. The illegal substances are in the Texas Controlled Substances Act, which is in Health and Safety Code. What exactly is a controlled substance? Here is the definition:

  • Controlled Substance: means a substance, including a drug, adulterant, and a dilutant, listed in Schedules I through V or Penalty Groups 1, 1-A, or 2 through 4. The term includes the aggregate weight of any mixture, solution, or other substance containing a controlled substance.    

There are many different penalties for controlled substances, and the two questions that matter in determining the penalty are:

1) What kind of a controlled substance is it?  

2) How much of it did you have? 

The list keeps growing as new chemical compounds are synthesized, deemed to be abusive, and then made illegal. Controlled Substances are broken up into groups, or schedules. According to Section 481.034 of the Health and Safety Code, the commissioner will annually establish the schedules. This article will discuss many of the various types and classifications of controlled substances in Texas. The term aggregate weight is emboldened and italicized because it is a very important. The Supreme Court of Texas has decided that the State of Texas does not have to differentiate between adulterants and dilutants and the actual controlled substance. They can weigh all of it together and that weight determines what level of charge a person will get. This can be a huge deal. It can mean the difference between a state jail felony and a first degree felony. Also, marijuana is not considered a controlled substance. For marijuana penalties, see Possession of Marijuana.

This article is about controlled substances in general. For more information on a specific controlled substance, visit these pages

What is Possession? 

For the State of Texas to prove up the charge of Possession of a Controlled Substance, several elements must be met. It must be shown that you actually possessed a controlled substance. What does possession mean? It is defined in the Health and Safety Code:

  • Possession: actual care, custody, control, or management  

Sometimes this is easy for the State to prove, and sometimes is not as easy. The State of Texas must prove that this beyond a reasonable doubt. This is the highest burden of proof that there is in the law. The legal definition of Possession is broader than the dictionary definition. The dictionary definition essentially is synonymous with ownership. The legal definition is more expansive. Someone can exercise care, custody, control, or management over something and not own it. Still, the battle over whether or not you actually possessed the controlled substance is a fight that can be won, given the right facts. If the State cannot meet its burden by demonstrating that you exercised care, custody, control, or management over the controlled substance beyond a reasonable doubt, you win and they lose. The State of Texas also must prove that you had possession of a controlled substance knowingly or intentionally. If you did not knowingly or intentionally possess a controlled substance, and the State cannot prove this beyond a reasonable doubt, they cannot make their case.

Was There an Illegal Search? 

When it comes to possession cases, the legality of the search is the first thing that needs to be looked at. Issues often arise during a search of the home or a search of a car where the constitutionality of the search comes up. Unless you gave voluntary and independent consent for police officers to come in and have a look around (generally not a good idea), the police almost always need a warrant to search your home. Our constitutional rights in our home are strong. Sometimes it is a question and sometimes it is not. But, if the search is not legal, not constitutional, you can win your case right there. This is because of what is known as The Fruit of the Poisonous Tree Doctrine. This means that if the search or the stop or seizure is unconstitutional under the Fourth Amendment, anything that flows from the illegal search must be suppressed

The Texas Controlled Substances Act - Chapter 481 of The Health and Safety Code 

The Texas Controlled Substances Act lists all of the illegal drugs in Texas. The Act became law in 1989, and like all other drug charges such as Possession and Manufacturing, it can be found in the Health and Safety Code. Controlled substances are classified into four different penalty groups. The usual substances that come to mind, such as Heroin, Cocaine, and Meth, are included. However, there are many others, including many prescription drugs such as Xanax, Adderall, and many others. Recently, in 2011, synthetic marijuana, or K2, was added to the Texas Controlled Substances Act. However, Marijuana itself is not included in the Act, and has its own separate category. For penalties associated with reefer, see Possession of Marijuana.

Penalty Groups in Texas

As noted above, the commissioner of the Department of State Health Services determines the classifications of controlled substances. Here are the criteria:

Section 481.035. Findings. 

  • (a) The commissioner shall place a substance in Schedule I if the commissioner finds that the substance:
  • (1) has a high potential for abuse; and 
  • (2) has no accepted medical use in treatment in the United States or lacks accepted safety for use in treatment under medical supervision. 
  • (b) The commissioner shall place in Schedule II if the commissioner finds that:
  • (1) the substance has a high potential for abuse
  • (2) the substance has currently accepted medical use in treatment in the United States; and 
  • (3) abuse of the substance may lead to severe psychological or physical dependence. 
  • (c) The commissioner shall place a substance in Schedule III if the commissioner finds that:
  • (1) the substance has a potential for abuse less than that of of the substances listed in Schedules I and II; and 
  • (2) the substance has currently accepted medical use in treatment in the United States; and 
  • (3) abuse of the substance may lead to moderate or low physical or high psychological dependence. 
  • (d) The commissioner shall place a substance in Schedule IV if the commissioner finds that:
  • (1) the substance has a lower potential for abuse than that of the substances listed in Schedule III
  • (2) the substance has currently accepted medical use in treatment in the United States; and 
  • (3) abuse of the substance may lead to a more limited physical or psychological dependence than that of the substances listed in Schedule III
  • (e) The commissioner shall place a substance in Schedule V if the commissioner finds that the substance:
  • (1) has a lower potential for abuse than that of the substances listed in Schedule IV; 
  • (2) has currently accepted medical use in treatment in the United States; and 
  • (3) may lead to a more limited physical or psychological dependence liability than that of the substances listed in Schedule IV. 

The five different penalty groups distinguish between groups of controlled substances based on potential for abuse and accepted medical use in treatment. provide for different levels of punishment, increasing from the the most severe (Schedule I) to the least severe (Schedule V). However, all of the groupings carry serious punishment. The page on Penalty Groups details all of the kinds and types of drugs that are classified within each group. For instances, substances in penalty group one are the hard street drugs that most people are familiar with: heroin, opium, methadone, methamphetamine, ketamine, cocaine, etc. These drugs have a reputation for having a very high potential for abuse and little no medical value. Penalty groups two and three consist of substances with known medical uses but the potential for abuse, such as prescription drugs like Xanax, Adderall, or Valium. For more on this, including specific punishments for each group, see Penalty Groups in Texas.

 

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