Possession of a Controlled Substance Texas

Possession of illegal drugs and controlled substances is an extremely complex area of the law. It’s best to start simply.
Illegal drugs fall into three main categories:

  • Prescription pills possessed without a valid prescription
  • Drugs made, manufactured or processed by unlicensed individuals
  • And marijuana.

Possession in Texas is legally defined as “actual care, custody, control or management” so to be in “possession” of anything illegal there must be evidence actually linking the accused to the contraband. Being with someone in possession or merely being in a place where drugs may be (and knowing drugs are present) is not sufficient to sustain charges in-and-of themselves.

The level of offense is dictated by certain factors in the Health and Safety Code Chapter 481.
Those factors are:

  • The type of drug
  • The amount possessed
  • And aggravating factors such as whether drugs were possessed in a drug free zone or possessed with intent to distribute.

Search and seizure law is a critical component of defending drug cases. This is because the way the police or any law enforcement attains the evidence in question is subject to a 4th Amendment analysis. Your lawyer should be an expert in probable cause, reasonable suspicion and up to date on the constantly evolving current case-law on the topic.

At Rosenthal & Wadas, PLLC, we pride ourselves in our aggressiveness on search and seizure issues as well as forcing the State to prove affirmative links to the drugs in question.


 What’s the difference between “possession” and “distribute” or “manufacture”?

“Possession of a Controlled Substance” or simply “possession” is the basic charge for any drug offense, whether it is marijuana or methamphetamine.  Proving possession requires a showing of “actual care, custody, control, or management.”   To “distribute,” a person must deliver a drug in some way other than “administering or dispensing” it.  But “manufacture” is the broadest definition of all, including the creation and altering of any drug (other than marijuana), by chemical synthesis and/or extracting natural substances.  It can also include the packaging and labeling of a drug.


What’s a “penalty group” and how does it affect how I’m charged?

The legislature has divided controlled substances into 4 penalty groups, and each one has its own punishment range, depending on whether the offense is possession or manufacture and distribution, the amount of the substance, and generally based on the dangerousness of the drug itself.

Some common drugs and their associated penalty groups are:

  • PG 1 – Methamphetamine, Cocaine, Heroin, Hydrocodone (over 300 mg)
  • PG 2 – Ecstasy, PCP
  • PG 3 –  Valium, Xanax, Ritalin, Hydrocodone (under 300 mg)
  • PG 4 – Morphine, Buprenorphine


How will the amount affect how I’m charged?

Charges are divided up by the amount involved, based on the penalty group.

For example,  marijuana possession is charged as:

  • Less than 2 oz – class B misdemeanor
  • 2 to 4 oz – class A misdemeanor
  • 4 oz to 5 lbs – 3rd degree felony
  • 5 lbs to 2000 lbs – 2nd degree felony
  • Over 2000 lbs – 1st degree felony

For Penalty Groups 1 and 2 –

  • Less than 1 gr – state jail felony
  • 1 to 4 grams – 3rd degree felony
  • 4 to 200 grams (or 4 to 400 grams for PG2) – 2nd degree felony
  • 200 or more grams (or over 400 grams for PG2) – 1st degree felony


What is SAFP?

SAFP stands for the Substance Abuse Felony Punishment program.  This is an intense treatment program for probationers and parolees who need substance abuse treatment.   It includes an “in-prison” phase consisting of orientation, treatment, and then re-entry and relapse prevention.  Then there is a 3 month stay at a transitional treatment center, similar to a half-way house, followed by 9 months of outpatient treatment.  The program can last up to 30 months, depending on successful progress towards recovery and sobriety.  SAFP is perhaps the most intense drug treatment program available, but it is also considered one of the most effective.