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.
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.
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.)
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.
(Tex. Health & Safety Code §§ 481.102, 481.1022, 481.115 (2022).)
Penalty Group 1-A includes LSD and several alternative forms of LSD. Penalties vary according to the number of "abuse units" (dosage units) possessed.
(Tex. Health & Safety Code §§ 481.1021, 481.1151 (2022).)
Penalty Group 2 includes drugs such as mescaline, MDMA, amphetamine, and psilocybin. Penalties vary according to the amount possessed.
(Tex. Health & Safety Code §§ 481.103, 481.116 (2022).)
Penalty Group 2-A includes synthetic cannabinoids, such as K2 or Spice. The penalties for possession of synthetic cannabinoids are as follows.
(Tex. Health & Safety Code §§ 481.1031, 481.1161 (2022).)
Penalty Group 3 includes drugs such as diazepam, barbital, peyote, and saliva divinorum. Penalties vary according to the amount possessed.
(Tex. Health & Safety Code §§ 481.104, 481.117 (2022).)
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.
(Tex. Health & Safety Code §§ 481.105, 481.118 (2022).)
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).)
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.
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.
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.
Texas law contains a Good Samaritan defense to state jail felony-level and misdemeanor-level drug possession charges for:
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.
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.