Possession of a Controlled Substance

Have you been arrested for possession of a controlled substance in Texas? There are many controlled substances in Texas. There are hundreds of chemical substances or drugs that are illegal to possess and also illegal to distribute. The penalties for possession are discussed below. The penalties are the same across the state, although different Texas Counties vary in how aggressively they pursue people who are arrested for this offense. Some counties take a stricter approach than others, and this depends in large part where you live in Texas. The goal of this page is to define and discuss what a controlled substance is, and what that means. This page will also detail how controlled substances are classified, why they are classified that way, and what the penalties are for each classification. Furthermore, what steps to take if you have been arrested and charged. The illegal substances are in the Texas Controlled Substances Act, which is Found in Chapter 481 of the Texas Health and Safety Code. We will first start by defining the term. Marijuana is not considered a controlled substance. For marijuana penalties, see Possession of Marijuana.    

What is a Controlled Substance?

What exactly is a controlled substance? The actual definition is confusing and requires other terms to be defined. Simply, a controlled substance is a drug that the government has determined poses serious social and health risks, and provides little or no medical value for treatment. Here is the definition from Chapter 481.002(5) of the Health and Safety Code:

“Controlled Substance” means a drug or any adulterant or dilutant of a drug that is listed in the penalty groups 1 through 4. The term includes the aggregate weight of a mixture or a solution of different substances that contains a controlled substance.       

This definition only raises more questions. These questions are answered below. What is a penalty group? What do these numbered groups mean? This page discusses all of this. There are two questions that matter greatly when determining what penalty range are. The first question is: what kind of controlled substance is it? The second question is: how much of it did you have?

What Kind of a Controlled Substance Is It?   

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 has the power to annually establish the schedules. This article will discuss many of the various types and classifications of controlled substances in Texas.

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

The Texas Controlled Substances Act lists all of the criminalized, 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 several different penalty groups. The usual substances that come to mind, such as Heroin, Cocaine, and Methamphetamine, 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.  

Penalty Groups in Texas

How are drugs slotted into penalty groups? How is medical value or potential for abuse determined? As noted above, the commissioner of the Department of State Health Services determines the classifications of controlled substances. The two major factors that the commissioner examines when determining which drugs go into which categories are the usefulness in medical treatment and the possibility or likelihood that a person would become addicted to the substance. For the criteria, look at the actual text of the law here: Section 481.035. Findings.  

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.  

How Much of It Did You Have? 

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.

What are the Penalties?

The penalties vary greatly. As noted above, the level of charge will depend on what sort of controlled substance is involved and how much is involved. If you are charged with possessing one of the well-known street drugs such as cocaine, heroin, or methamphetamine, these are all Penalty Group 1 substances. That means that any amount is a felony and the penalties rise from there. The amounts listed below include dilutants and adulterants, meaning that anything that was added to the substance will contribute to the penalty and will not be subtracted from the weight. This is best illustrated with cookies made with marijuana oil. The cookies are infused with marijuana oil, although the bulk of the weight of the cookies comes from sugar, flour, eggs, and perhaps chocolate chips. However, when determining the penalty, law enforcement will weigh all of these ingredients together. This is shocking to most people, and it can lead to extreme and disproportionately severe criminal charges.    

Here are the punishment classifications for penalty group 1 drugs, as listed in Section 481.115 of the Texas Health and Safety Code. Any amount that is less than one gram is a state jail felony. A state jail felony ranges in punishment between 6 months and two years in a state jail facility, and up to a $10,000 fine. Any amount between one and four grams is a third degree felony. Third degree felonies have a range of punishment between two and ten years in the Texas Department of Corrections, and up to a $10,000 fine. Any amount between four and two hundred grams is a second degree felony, which range in punishment between two and twenty years in the Texas Department of Corrections. Any amount of a drug between two hundred and four hundred grams is a first degree felony, and these range in punishment between five and ninety nine years in the Texas Department of Corrections, and up to a $10,000 fine. Any amount over four hundred grams is punishable by life in prison or between ten and ninety nine years in the Texas Department of Corrections.         

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 Means Any of These Four Concepts: Custody, Care, Control, Management  

The state of Texas only has to prove one of these to prove possession. These concepts overlap conceptually. Sometimes proving possession is easy for the State, and sometimes is not as easy. This depends on the specific facts and circumstances of the case. Also, the State of Texas must prove possession as an element of the offense 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, but the legal definition is more expansive. This is because someone can exercise care, custody, control, or management over something and not own that thing. 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. Knowingly and intentionally are not always clear in a case. If a person does not confess to police, knowing or intentional possession are also a question of circumstances.

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. The Fourth Amendment of the U.S. Constitution protects our rights against warrantless searches in our homes, and also protects us, albeit to a lesser extent, on our persons and in our vehicles. This can be a huge part of any possession case. 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 homes are strong. Sometimes it is an issue 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. When something is suppressed in a criminal case, that means a judge has prevented prosecutors from using it against a defendant. If the thing suppressed constitutes the entire basis for the arrest, the entire case goes away.    

 

 

 

We had an unfortunate event happen with our daughter. Mr. Deegan was appointed as her attorney. Mr. Deegan was always there willing to answer every question that we had. He was very sincere with his responses. It is very evident that he cares about his clients as people and not just a case. We are very thankful that God blessed us with a lawyer like Andrew Deegan. - Rex

 

Andrew's knowledge and guidance have been very helpful in my situation. He was accessible, trustworthy and made me a priority. I would not hesitate to use his services again, though hopefully it will not be needed. Thanks! - Mark M.

 

Andrew Deegan is an exceptional attorney. Mr. Deegan's knowledge of the law and attention to detail are incredible. His drive to meet his client's needs is second to none. I would feel confident coming to him with any of my legal needs. He is the real deal. - Dan B.

 

Attorney Profile

How can we help you?

To learn more about your case and how Andrew Deegan Attorney at Law can help, fill out the form below or call for consultation 817-689-7002.

All fields with an * are required.