Texas Drug Possession Laws: Criminal Charges and Penalties
Drug possession is a serious criminal charge in Texas carrying a wide range of punishments from probation to lengthy prison sentences, depending on the amount of the drug. If you are charged under the possession law, it means the state has accused you of carrying or having access to a controlled substance such as marijuana, cocaine, or Ecstasy.
And any drug possession conviction will result in a 6 month driver’s license suspension under Texas statutes. So it makes sense to speak with an attorney to explore alternatives to pleading guilty if you require the ability to drive.
The police can charge you with drug possession if they find drugs in your pockets or anywhere else on your body, or they can charge you under a claim of “constructive possession.” That means the drugs were in a place that you normally control or could easily reach. That could be your car, your apartment, or the cushions of a couch where you were sitting when the police entered.
A conviction on drug possession charges could have serious implications for you because of the possibility that you might have to go to jail and pay stiff fines reaching into the thousands of dollars, as well as the possibility the police may seize your car or other property. And drug possession charges will follow you with a criminal record that can also keep you from certain jobs and professional licenses.
Illegal Drugs in Texas
The Texas Health and Safety Code sets the possession law, dividing controlled substances into five penalty groups, plus a marijuana category. While some of the substances are legal prescription drugs, it is illegal to possess them without a rightful prescription, and the Texas health code establishes the punishments for illegal possession.
| Penalty Group | Examples of Drugs/Controlled Substances |
|---|---|
| 1 | Cocaine, heroin, methamphetamine, GHB, ketamine, oxycodone and hydrocodone. |
| 1A | LSD |
| 2 | Ecstasy (MMDA), PCP and mescaline. |
| 3 | Valium, Xanax and Ritalin. |
| 4 | Compounds containing Dionine, Motofen, Buprenorphine or Pryovalerone |
Also see our marijuana possession laws & defense page.
Penalties for Drug Possession in Texas
Whether you are charged with felony possession or misdemeanor possession depends on the penalty group and the weight or amount of the drug.
Penalty Group 1
| Weight | Classification | Penalty |
|---|---|---|
| Less than one gram | State jail felony | 180 days to 2 years in a state jail and/or a fine of not more than $10,000 |
| 1 gram or more, less than 4 grams | Third-degree felony | 2 to 10 years in a state prison and/or a fine of not more than $10,000 |
| 4 grams or more, but less than 200 grams | Second-degree felony | 2 to 20 years in a state prison and/or a fine of not more than $10,000 |
| 200 grams or more, but less than 400 grams | First-degree felony | 5 to 99 years in a state prison and/or a fine of not more than $10,000 |
| 400 grams or more | Enhanced first-degree felony | 10 to 99 years and a fine of not more than $100,000 |
Penalty Group 1A
| Amount | Classification | Penalty |
|---|---|---|
| Fewer than 20 units | State jail felony | 180 days to 2 years in a state jail and/or a fine of not more than $10,000 |
| 20 or more units, but less than 80 units | Third-degree felony | 2 to 10 years in a state prison and/or a fine of not more than $10,000 |
| 80 units or more, but less than 4,000 units | Second-degree felony | 2 to 20 years in a state prison and/or a fine of not more than $10,000 |
| 4,000 units or more, but less than 8,000 units | First-degree felony | 5 to 99 years in a state prison and/or a fine of not more than $10,000 |
| 8,000 units or more | Enhanced first-degree felony | 15 to 99 years in a state prison and a fine of not more than $250,000 |
Penalty Group 2
| Weight | Classification | Penalty |
|---|---|---|
| Less than one gram | State jail felony | 180 days to 2 years in a state jail and/or a fine of not more than $10,000 |
| More than 1 gram, less than 4 grams | Third-degree felony | 2 to 10 years in a state prison and/or a fine of not more than $10,000 |
| More than 4 grams, less than 400 grams | Second-degree felony | 2 to 20 years in a state prison and/or a fine of not more than $10,000 |
| 400 grams or more | Enhanced first-degree felony | 5 to 99 years and a fine of not more than $50,000 |
Penalty Groups 3 and 4
| Weight | Classification | Penalty |
|---|---|---|
| Less than 28 grams | Class A misdemeanor | Not more than 1 year in a county jail and/or a fine of not more than $4,000 |
| 28 grams or more, but less than 200 grams | Third-degree felony | 2 to 10 years in a state prison and/or a fine of not more than $10,000 |
| 200 grams or more, but less than 400 grams | Second-degree felony | 2 to 20 years in a state prison and/or a fine of not more than $10,000 |
| 400 grams or more | Enhanced first-degree felony | 5 to 99 years and a fine of not more than $50,000 |
Additional Penalties
- The Texas Tax Code, in addition to the criminal penalties for drug possession, also sets potential civil penalties. Although the statute is not often used in minor possession cases, the code requires that taxes must be paid on illegal drugs, so that “dealers” who possess over certain amounts can be charged with tax evasion.
- The state of Texas can also suspend your license for up to six months following a conviction on any violation of the Texas Controlled Substances Act.
- The Code of Criminal Procedure also allows police to seize any property used or “intended to be used” in the commission of a drug felony. That means they can take your car, your home, or any other belonging where you are accused of carrying or hiding drugs. The asset forfeiture law is a civil action, not criminal, and you don’t have to be convicted for the state to try to take your property.
As you can see, the drug possession penalties are complicated, an depend on the classification of the substance and the quantity.
Things get even more complicated if you have a prior drug conviction and are facing a 2nd or 3rd offense drug possession charge. Please call to speak to one of our attorneys to determine what penalties you may be facing if convicted, and how we can help fight the charge.
Possession of Drug Paraphernalia
In Texas, possession of drug paraphernalia is a separate criminal charge under the law.
What is defined as illegal drug paraphernalia?
Any item that can be used as a drug processing, packaging, or consumption mechanism can be defined as paraphernalia under 481.002 (17) of the Texas Controlled Substances Act. Even common household items such as scales, spoons, bowls, envelopes or bags can land you an illegal possession of paraphernalia charge. The most common paraphernalia charges result from pipes, and bongs.
What is the Penalty for Possession of Drug Paraphernalia in Texas?
Simple possession of drug paraphernalia is a Class C Misdemeanor, which carries a penalty of fines up to $500.
Distribution or possession with intent to distribute or sell drug paraphernalia is a Class A misdemeanor, which can result in up to a year in jail. Second offense penalties will result in mandatory jail time, or if you sell to someone under 18 years old.
Will I have to go to Jail on my Drug Possession Criminal Charge?
The punishment largely depends on the amount of drugs involved and your previous conviction history, but it’s very possible you may not have to serve time for a drug possession conviction if it’s your first offense for a relatively small amount.
State possession law allows counties to set up diversion programs for people charged with crimes involving the use or possession of drugs, including marijuana. The state health code also requires any county with a population of more than 200,000 to establish a drug court program to send some drug offenders to treatment instead of jail. And, judges are required to give probation, or community supervision, in some drug possession cases.
The Texas Code of Criminal Procedure makes community supervision and mandatory drug treatment programs a sentencing requirement for people convicted of possessing:
- Less than 1 gram of drugs such as cocaine or meth.
- Less than 5 units of drugs such as LSD.
- Less than 1 gram of drugs such as Ecstasy (MMDA) or PCP.
- Less than one pound of marijuana.
However, the judge does not have to sentence you to probation if you have been convicted of a previous felony, or if you have violated an earlier probation sentence. In those cases, it is up to the judge whether you go to jail or get probation. The judge also can sentence you to serve three to six months in jail before starting probation.
But remember, the state must first prove the criminal charge of drug possession before you can be sentenced. To do that, the prosecutor must show that police found the drugs on you or in your control after a legal search.
If we can show the officers did not have probable cause, your consent, or a search warrant, we may be able to challenge the legality of the search that turned up those drugs and get the evidence suppressed, keeping the state from making its case against you.
As you can see, drug possession cases get complicated very quickly. Please contact us for a consultation on your Texas drug possession charge, and we’ll walk your through the facts of your case, and your legal best defense options.
