Possession of a Controlled Substance in Texas

All states, including Texas, regulate the possession of controlled substances, though each state differs in how it classifies them and penalizes their illegal possession.

This article discusses only the illegal possession of controlled substances in Texas. Illegally making, selling, or possessing drugs with intent to sell carry different penalties in Texas. A separate article addresses Texas's marijuana possession and sale laws.

How Does Texas Classify Controlled Substances?

For criminal penalty purposes, Texas divides controlled substances into seven "penalty groups"—1, 1-A, 1-B, 2, 2-A, 3, and 4. These penalty groups organize drugs according to their dangerousness and propensity for addictiveness, with group 1 drugs being considered the most dangerous and addictive, and group 4 drugs being the least.

Most controlled substances fall into penalty groups 1, 2, 3, or 4. Examples of these drugs can be found in the penalty sections below. Texas singles out a few drugs within the A and B subgroups, including LSD, fentanyl, and synthetic cannabinoids.

Penalties and Jail Time for Illegal Possession of Controlled Substances in Texas

It's illegal in Texas to knowingly possess controlled substances without a valid medical prescription. Penalties vary according to the type and amount of the drug involved, with punishments ranging from a class B misdemeanor to a class A felony. A few offenses come with the possibility of a life sentence. (Unless otherwise noted, felony convictions carry fines of up to $10,000 in addition to incarceration.)

Possession of Controlled Substances: Penalty Groups 1 and 1-B

Penalty group 1 includes drugs such as heroin, oxycodone, raw opium, cocaine, carfentanil, meth, and ketamine. Penalty group 1-B includes fentanyl and any derivatives.

Penalty groups 1 and 1-B carry the same punishments for illegal possession based on amount.

• Less than 1 gram is a state jail felony (180 days to 2 years in state jail).
• Between 1 and 4 grams is a third-degree felony (2 to 10 years in prison).
• Between 4 and 200 grams is a second-degree felony (2 to 20 years in prison).
• Between 200 and 400 grams is a first-degree felony (5 to 99 years in prison).
• 400 grams or more carries a life sentence or 10 to 99 years in prison, plus a maximum $100,000 fine.

(Tex. Health & Safety Code §§ 481.102, 481.1022, 481.115 (2022).)

Possession of Controlled Substances: Penalty Group 1-A

Penalty Group 1-A includes LSD and several alternative forms of LSD. Penalties vary according to the number of "abuse units" (dosage units) possessed.

• Fewer than 20 units is a state jail felony (180 days to 2 years in state jail).
• 20 to 79 units is a third-degree felony (2 to 10 years in prison).
• 80 to 3,999 units is a second-degree felony (2 to 20 years in prison).
• 4,000 to 7,999 units is a first-degree felony (5 to 99 years in prison).
• 8,000 units or more carries a life sentence or 15 to 99 years in prison, plus a fine of up to $250,000.

(Tex. Health & Safety Code §§ 481.1021, 481.1151 (2022).)

Possession of Controlled Substances: Penalty Group 2

Penalty Group 2 includes drugs such as mescaline, MDMA, amphetamine, and psilocybin. Penalties vary according to the amount possessed.

• Less than 1 gram is a state jail felony (180 days to 2 years in state jail).
• Between 1 and 4 grams is a third-degree felony (2 to 10 years in prison).
• Between 4 and 400 grams is a second-degree felony (2 to 20 years in prison).
• 400 grams or more carries a life sentence or 5 to 99 years in prison, plus a fine of up to $50,000.

(Tex. Health & Safety Code §§ 481.103, 481.116 (2022).)

Possession of Controlled Substances: Penalty Group 2-A

Penalty Group 2-A includes synthetic cannabinoids, such as K2 or Spice. The penalties for possession of synthetic cannabinoids are as follows.

• Two ounces or less is a class B misdemeanor (maximum of 180 days in jail and a $2,000 fine).
• Between 2 and 4 ounces is a class A misdemeanor (maximum of one year in jail and a $4,000 fine).
• Between 4 ounces and 5 pounds is a state jail felony (180 days to 2 years in state jail).
• Between 3 and 50 pounds is a third-degree felony (2 to 10 years in prison).
• Between 50 and 2,000 pounds is a second-degree felony (2 to 20 years in prison).
• More than 2,000 pounds carries a life sentence or 5 to 99 years in prison, plus a fine of up to $50,000.

(Tex. Health & Safety Code §§ 481.1031, 481.1161 (2022).)

Possession of Controlled Substances: Penalty Group 3

Penalty Group 3 includes drugs such as diazepam, barbital, peyote, and saliva divinorum. Penalties vary according to the amount possessed.

• Less than 28 grams is a class A misdemeanor (maximum of one year in jail and a $4,000 fine).
• Between 28 and 200 grams is a third-degree felony (2 to 10 years in prison).
• Between 200 and 400 grams is a second-degree felony (2 to 20 years in prison).
• 400 grams or more carries a life sentence or 5 to 99 years in prison, plus a fine of up to $50,000

(Tex. Health & Safety Code §§ 481.104, 481.117 (2022).)

Possession of Controlled Substances: Penalty Group 4

Penalty Group 4 includes mostly therapeutic drugs containing small amounts of codeine or hydrocodone (such as cough suppressants). Penalties for illegal possession vary according to the amount involved.

• Less than 28 grams is a class B misdemeanor (maximum of 180 days in jail and a $2,000 fine).
• Between 28 and 200 grams is a third-degree (2 to 10 years in prison).
• Between 200 and 400 grams is a second-degree felony (2 to 20 years in prison).
• 400 grams or more carries a life sentence or 5 to 99 years in prison, plus a fine of up to $50,000

(Tex. Health & Safety Code §§ 481.105, 481.118 (2022).)

Texas's Enhanced Penalties for Possession in Drug-Free Zones

Texas law imposes enhanced penalties for possession crimes committed in drug-free zones. Drug-free zones include school buses and anywhere in, on, or within 1,000 feet of school property, a youth center, a playground, or a residential treatment center.

Misdemeanor and state jail felony offenses increase by one offense level, and for felonies, the law adds five years to the sentence and doubles the fine.

(Tex. Health & Safety Code § 481.134 (2022).)

Defenses to Drug Possession Charges in Texas

In drug possession cases, a defense attorney may raise several arguments to challenge the prosecution's case. The prosecutor must prove the case beyond a reasonable doubt.

Lack of Knowledge or Possession

Drug possession crimes generally require proof that the defendant had actual or constructive possession of the drugs and knew what the drugs were. If the prosecutor can't establish possession or knowledge, the defendant should be acquitted. For example, a defendant might argue they thought the white pills were aspirin or that they had no idea how the drugs got into their gym bag.

Illegal Search or Seizure

Another common defense strategy in drug possession cases is to challenge the legality of the search that led to the drugs. If the police conducted an illegal search, typically, the evidence (the drugs) must be excluded. Without evidence of the drugs, the prosecution doesn't have much of a case.

Good Samaritan or 911 Immunity Defense

Texas law contains a Good Samaritan defense to state jail felony-level and misdemeanor-level drug possession charges for:

• the overdose victim, and
• the first person to report the overdose who remains on the scene and cooperates with authorities.

The defense, however, is a one-time deal. And it does not apply if the defendant was involved in another crime at the same time, has a prior conviction or deferred adjudication for a drug offense, or has called 911 in response to an overdose in the past 18 months.

Talk to an Attorney

Drug possession charges can carry serious penalties. If you face charges, talk to a criminal defense attorney who defends drug cases. An attorney can help you understand the criminal legal process, defend your rights, and seek the best possible outcome in your case.