Texas Health and Safety Code Chapter 481 governs drug offenses in Texas. There are three main factors which determine the degree of offense for drug possession in Texas; (1) the type of drug; (2) the quantity; and (3) any aggravating circumstances (such as drug-free zone, possession of a weapon when arrested or possession of the drug with intent to deliver).
TEXAS DRUG PENALTY GROUPS
In Texas, drugs are classified into different penalty groups with a special penalty group for marijuana. Each penalty group carries a different penalty range which can vary from Class "C" misdemeanors to Felonies. Please note the following is not a complete list but gives you an idea of what you could be facing.
Penalty Group 1 includes: Cocaine, Heroine, Methamphetamine, Ketamine, Oxycodone and Hydrocodone (over 300 mg).
Penalty Group 1a includes: LSD (Lysergic Acid Diethylamide).
Penalty Group 2 includes: Ecstasy, PCP (Phencyclidine), Mescaline, Marinol,
Penalty Group 3 includes: Valium, Xanex, Ritalin, and Hydrocodone (less than 300 mg.)
Penalty Group 4 includes: Dionine (morphine), Motofen, Buprenorphine (an opioid), and Pyrovalerone.
Punishment Ranges (Generally):
Penalty Groups 1 & 2:
Less than 1 gram: State Jail Felony.
Between 1 and 4 grams: 3rd Degree Felony
Between 4 and 200 grams (4 and 400 grams for Pen. Group 2): 2nd Degree Felony
Over 200 grams on Pen. Group 1 (over 400 grams for Pen. Group 2): 1st Degree Felony
400 grams or more (Pen. Group 1): Enhanced 1st Degree Felony (10 years to 99).
Penalty Group 1A:
Less than 20 units: State jail felony
Between 20 and 80 units: 3rd Degree Felony
Between 80 and 4,000 units: 2nd Degree Felony
4,000 to 8,000 units: 1st Degree Felony
Over 8,000 Units: Enhanced 1st Degree Felony
Penalty Group 3 &4
Less than 28 grams: Class A Misdemeanor.
28 to 200 grams: 3rd Degree Felony
200 grams to 400: 2nd Degree Felony
400 grams or more: 1st Degree Felony.
Again, sometimes an aggravating factor can increase the punishment range. Generally, an aggravating factor will enhance the punishment by one level (i.e. from a Class "B" misdemeanor to a Class "A" misdemeanor). Aggravating factors can be possession with intent to distribute or possession in a drug free zone. For example, possession of marijuana of less than 2 ounces in a drug free zone is a Class A Misdemeanor instead of a Class B.
Possession of Marijuana (POM)
A person commits an offense of possession of marijuana if a person knowingly or intelligently possesses a usable quantity of marijuana. A common misunderstanding is that an individual caught in possession of a small amount of marijuana receives a charge as severe as a speeding ticket. THIS IS FALSE! An officer has the option to "cite and release" instead of arresting for possession of marijuana; additionally, the individual must live in the county where the offense is committed and the amount of marijuana cannot be over 4 ounces. The citation itself is similar to a speeding ticket, but the punishment is still more severe. The punishment for possession of marijuana is determined by the quantity/amount:
2 ounces or less: Class B Misdemeanor
4 ounces or less but more than 2 ounces: Class A Misdemeanor
5 pounds or less but more than 4 ounces: State Jail Felony
50 pounds or less but more than 5 pounds: 3rd Degree Felony
2000 pounds or less but more than 50 pounds: 2nd Degree Felony
More than 2000 pounds: Life or for a term of not more than 99 years or less than 5 years, and a fine not to exceed $50,000
Most people don't know that a conviction for POM will result in a person’s driver’s license being suspended, automatically, for 180 days by the Texas Department of Public Safety. DPS also requires a drug education program that must be completed within the 180 day suspension.
If you have received a citation for possession of marijuana, a commissioned peace officer claims that you knowingly or intelligently possessed a usable quantity of marijuana. The offense of possession of marijuana can be broken into three primary elements that a prosecutor will have to prove beyond a reasonable doubt:
Possession - An individual must be in possession of marijuana. Possession involves the exercise of control, management, or care over the controlled substances. Possession can also be constructive, when an individual has the ability to control the object (e.g., in passenger seat while the individual is operating the motor vehicle). Presence, accessibility, and proximity are among several issues that may be sufficient to establish possession. If an individual is not in exclusive possession, the State is required to present evidence affirmatively linking the individual to the marijuana by the facts and circumstances of the specific case
Knowingly or intelligently possessing - An individual must have knowledge that they are possessing marijuana. If an individual is unaware of their possession, they are not committing a crime. A few examples of situations where an individual might have knowledge they are possessing an item, but they do not have knowledge they are possessing marijuana are: Borrowing a friend’s car in which the friend has a stash of weed in the trunk and the individual never opened the trunk. An individual has knowledge of their possession of the car, but not the marijuana inside or Holding a purse for a friend in which the purse has a bag of weed in it. An individual has knowledge of their possession of the purse, but not the marijuana inside.
Usable quantity - A usable quantity is an amount sufficient to be used in the common use of marijuana (i.e., rolling a blunt, smoking a bowl, etc.); amounts less than a gram are considered to be useable. However, an amount that is not usable is not illegal (e.g., small amount of resin leftover in a pipe).
TEXAS DRUG OFFENSES
© 2018 Gary E. Patterson, P.C.