ARTICLE REVIEW: Have you been caught in possession of a controlled substance or drug in the state of Texas? We review current laws and penalties…plus how drug rehab can help.
Table of Contents:
- Basic Definitions
- Specific Law and Intent to Sell
- The Legal Process in Texas
- Burden of Proof
- Misdemeanor Possession
- Felony Possession
- Other Penalties
- Alternative Sentencing
- Drug Courts
- When to Contact a Lawyer
- Your Questions
Basic Definitions
Texas has a zero-tolerance policy when it comes to drugs. Like much of the south, a drug possession charge is considered a very serious offense and comes with high penalties. These rules and regulations can be found under the Texas Controlled Substance Act. [1]
When you’re caught in the Lone Star State with any amount of drugs, you can face:
- Drug addiction treatment
- Jail time
- Large fines
- License suspension
- Probation
Sentencing depends on something known as “Penalty Groups”. There are 4 different penalty groups all of which come with their own severity in punishment. Grouping depends on your circumstances. Penalty Groups are as follows:
1. Penalty Group 1: Drugs such as opioids including painkillers, opium derivatives, and other opiates, cocaine, methamphetamine, LSD, mescaline, psilocybin, and other hallucinogens.
Penalties for these drugs include a minimum of 2 years in jail with a fine of $10,000 to a maximum of life imprisonment with a fine of up to $250,000.
2. Penalty Group 2: Drugs such as ecstasy, PCP, hashish, and other cannabinoids derived from marijuana.
Penalties for these drugs include a minimum of 2 years in jail to a maximum of life imprisonment with a fine of up to $50,000.
3. Penalty Group 3: Drugs such as opioids not mentioned in Penalty Group 1, benzodiazepines and sedatives such as Valium, anabolic steroids, Ritalin, other prescription drugs that have either a stimulant or depressant effect along with the potential for abuse.
Penalties for these drugs include a minimum of 1 year in jail and a fine of up to $4,000 to a maximum of 20 years in jail with a fine of up to $10,000.
4. Penalty Group 4: Drugs such as opioids not mentioned in Penalty Group 1 and 3, other prescription medication and chemical compounds which hold penalty for abuse.
Penalties for these drugs are the same as Penalty Group 3.
Specific Law and Intent to Sell
Texas Statues: The Texas Controlled Substances Act [1]
The minimum penalty for drug possession in Texas is considered a “Class B” or “Class A” misdemeanor. Often, this results in a fine of upwards of $4,000 and a maximum of one year in jail.
If you’re caught with a large amount of a substance – enough to consider you of “drug possession with the intent to distribute” – you can expect fines to reach upwards of $250,000 and even risk life imprisonment. What determines whether or not you have the intent to sell are a number of factors including:
- Holding past convictions or prior offenses, especially drug trafficking charges
- How much of a drug you have in your possession
- How the drug is stored or concealed
- Possessing large amounts of cash
- Scale or baggies or other drug paraphernalia
The Legal Process in Texas
It’s important to inform yourself of Texas’ legal process. After being caught in possession of drugs, you can expect the following steps. [2] The Legal process for drug possession in Texas is:
1. The Arrest and Miranda Rights
The officer making your arrest must inform you of the rights you have. These include your right to remain silent, to consult with an attorney and one present during questioning. If you can’t afford a lawyer, then the officer must inform you of your right to have one appointed by the attorney. It’s important that you inform the officer if you plan to exercise these rights. Furthermore, if an officer doesn’t inform you of these rights, that’s doesn’t mean your charges are dropped. But it’s something you can inform the court which may help your defense.
2. Charges Made by the Judge
Within 48 hours of your arrest, a judge will tell you of all the charges you’re accountable for. During this time, s/he must also inform you of whether or not there’s an affidavit, a sworn statement, in support of your charges. You will then be told your rights which includes the option to remain silent, to wait for the presence of an attorney, or have one appointed to you.
3. Bail and Bond Hearing
In accordance with your charges, the judge will inform you of a certain set of conditions to make sure you return to court if you’re released from jail. This is when you’ll receive the dollar amount for your bail. Bail varies depending on the case. However, it’s important to note that as long as the defendant can make the collateral, every charge must receive a bail opportunity.
You may find that the bail is a price beyond your limit. If so, your attorney has the option to request a bail reduction hearing where s/he will prove you don’t have enough collateral to make bail. This can be successful as long as it’s also proven that you have strong ties with your community and are not a danger to the public.
4. Charges Filed
In cases of drug possession, the prosecutor must file charges either through information used specifically for Class A or B misdemeanors or indictment, used solely for felonies. If your charges are filed through indictment, then you’ll be presented in front of a 12-person grand jury which will decide whether or not you’re guilty.
5. Arraignment
After charges are filed, you’ll need to make an initial appearance in court. This is known as the arraignment. You’ll receive a copy of either the information or indictment and, if desired, the charges will be read aloud in an open court. This is your opportunity to request a plea or continuance. Rightfully, you’re innocent until proven guilty. Therefore, in many cases, the judge will allow for a continuance in order for an investigation to continue. However, you can also plea guilty and receive your sentence accordingly. The decision is yours.
6. Trial
In the state of Texas, a trial must go through two phases in order to be carried out properly. The first is known as the guilt/innocent phase where the state has the ability to prove you guilty. Evidence will appear and witnesses will make statements. From there, your attorney will cross-examine the prosecutor’s witnesses and present your case. If you’re found guilty, you will then receive your sentence.
Burden of Proof
Under Texas law, the prosecutor must demonstrate specific elements in order to properly convict you. These elements must be proven beyond reasonable doubt. [3] They include:
1. LEGALITY. The evidence that you were in possession of a controlled substance when you were arrested.
2. KNOWLEDGE. The evidence that you knew of the illegal nature of this controlled substance and you knew it was present at the time of your arrest.
3. CONTROL. The evidence that you had control over both the presence and location of the controlled substance.
Misdemeanor Possession
Due to Texas’s strict drug laws, there are limited cases where one receives a misdemeanor for being in possession of a controlled substance. For example, it was only recently marijuana was decriminalized – allowing for those in possession of a personal amount to be charged with a misdemeanor [4]. Though you may only be charged a misdemeanor for possessing a small amount of another substance, it’s unlikely in most places in Texas.
Typical penalties for a drug possession misdemeanor in Texas include:
- 1 year in jail
- Fine of up to $4,000
- License suspension
- Probation
Felony Possession
A felony charge is taken much more seriously than a misdemeanor. Therefore, the penalties you receive are also more intense. The exact intensity of these penalties varies. Someone caught with a personal amount of heroin will most likely be charged less than some distributing a large amount of it.
Since a variety of factors come into play, there’s no telling how much one will be charged for felony possession in Texas. Still, common penalties include:
- A minimum of 2 years and a maximum of life in prison.
- A fine between $10,000 and $250,000.
- License suspension
- Probation
Other Penalties
There are a number of other penalties that come with a drug possession charge that may not be vocalized to you. This is due to the fact that much of these penalties pertain to certain situations. For example, you may be found ineligible to qualify for public housing. However, that’d only matter to you if you were seeking such accommodations out. In order to get a clear sense of these penalties, you’ll want to speak to a lawyer.
Here are other consequences you may run into due to a drug possession charge in Texas:
- Inability to obtain certain employment.
- Inability to obtain certain types of government employment.
- Inability to qualify for certain types of college scholarship or financial aid.
- Inability to qualify for public housing.
- Inability to receive a state license or certification.
- Potential community service.
- Potential enrollment in drug treatment programs.
Alternative Sentencing
In Texas, there are a number of different alternative sentences which may be of interest to you. [5] It’s difficult to qualify for some of these, considering how strict Texas is on drug cases. Still, it’s worth the effort to take a shot at some of these, as you may be able to reduce jail time and other punishments. In order to get a real sense of what’s possible, you’ll want to speak with a lawyer.
Alternative sentencing in Texas includes:
House Arrest. You might be able to avoid incarceration through a house arrest. This is a type of probation during which you’ll have to wear an electronic monitor. The purpose of this is to make sure you’re following curfew requirements. In order to be approved for house arrest, you must be screened.
Pre-Trial Diversion. If you’re a first-time offender of a non-violent crime who wasn’t selling drugs or had the intent to distribute, you may qualify for a pre-trial diversion in Texas. This is similar to probation in the sense that you must report to a supervising officer. However, you will also need to appear before a court on a regular basis.
Restitution Center. If you owe a large amount in fines, you might be sentenced to a restitution center while you’re on probation. The purpose is for you to be educated not only on your crimes and the criminal system but on how to land work. The goal is to help you find a job opportunity and begin repaying the money you owe.
Drug Courts in Texas
The final alternative sentence for drug possession in Texas could change your life.
If you’re seeking help for addiction and are charged with drug possession, a drug court might be the answer for you.
This is a specialized court that’s used to rehabilitate – rather than punish – people caught with drugs. [6] Instead of sentencing you to traditional methods of punishment, a drug court will send you to either an inpatient or outpatient drug rehabilitation facility. The idea is to help people resolve their problems rather than creating more problems. This, in turn, creates a better community.
If you’re eligible for rehab via a drug court, you’ll be treated as though you’re on probation. This means you’ll receive drug tests on a regular basis. If you don’t pass these drug tests, you’ll be brought back to court and retried for potentially additional penalties.
When to Contact a Lawyer
Immediately upon your arrest, you should consider finding yourself a lawyer. Since Texas has a zero-tolerance policy against drug crimes, you can expect the law to be taken against you almost immediately. Furthermore, since the consequences of being caught in possession of drugs vary from case to case, it’s important to have a lawyer to figure out the best legal path for YOU.
Can’t afford a lawyer?
Then the State will provide you with one as long as you qualify. If you do qualify, make sure to take as much advice from this lawyer as possible before trial.
In order to search for the right lawyer, you may think a Google search is the answer. And though this will give you some great leads, it’s important to talk around with family, friends, and acquaintances to get their opinion on who is the best lawyer for your situation. More often than not, people have more success in finding the right lawyer through discussion rather than an internet search.
However, if you have no choice but to seek out a lawyer online, check out the State Bar of Texas to get a clear list of qualified attorneys. [7]
Your Questions
Have you got more questions about drug possession laws in Texas?
Feel free to ask them in the comments below. If you have more information to share pertaining to these laws or advice to give about Texas’ legal system, we’d also love to hear from you. We try to get back to everyone in a prompt and personal manner.
Reference Sources: [1] Texas Statutes: Texas Controlled Substance Act
[2] Texas Attorney General, Ken Paxton – Understanding the Legal Process
[3] Texas Penal Code – Title 1. Introductory Provisions – Chapter 2. Burden of Proof
[4] NHTSA: Impact of the Legalization and Decriminalization of Marijuana on the DWI System
[5] State of Texas Judiciary: Diversion Programs
[6] State of Texas Judiciary: Texas Drug Courts
[7] State Bar of Texas: Find a Lawyer
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