How does the Texas Controlled Substances Act work?
The Texas Controlled Substances Act (TCSA) creates two crimes. First, it makes it a crime to deal drugs. Second, it makes it a crime to possess drugs without a valid doctor’s prescription.
However, these are two completely different crimes. As a result, the TCSA provides different penalties for drug dealers and drug users. Notably, the penalties are tied to two key facts.
The key facts are the drug type and drug amount. In particular, the TCSA lists four penalty groups (PGs) for drugs. And each group has its own list of drugs. For example, cocaine and heroin are in PG-1. And ecstasy is in PG-2.
Likewise, the TCSA creates different levels or tiers based on the drug amount. These levels reflect how serious the drug charge is. The most common tiers for possession of a controlled substance are:
- Less than a gram (state-jail felony);
- 1-4 grams (third degree felony); and
- More than 4, but less than 200 grams.
Together, the drug amount and penalty group will tell you how much jail time you may get for a drug charge in Texas.
Finally, the term “drug charge” covers a wide variety of crimes and conduct. But the most common drug crime is low-level drug possession. This is because there are more drug buyers than there are drug dealers. And most drug buyers get small amounts for recreational use.
As a result, we will focus on drug possession crimes in this post. And we will also focus on penalty groups 1 and 2. This is because these groups contain the most common drugs police arrest people for. Most important of all, we will tell you what to expect if you are facing a drug possession charge in Texas.
What does drug “possession” mean in Texas?
The TCSA defines “possession” as “actual care, custody, control, or management.” Also, Texas case law adds a helpful explanation to this definition.
According to Evans v. State, possession means knowledge and control. In other words, the person must know about the drugs and have control over the drugs. If both of these facts are true, then the person is in possession of the drugs.
Equally important, this law protects people who maybe at the wrong place at the wrong time. This happens when a person is a passenger in a car with other people who have drugs. Or it can happen when someone’s roommate has drugs in a house or apartment they share.
In these cases, it is not enough that the person was in the same place as the drugs. On the contrary. The State must show the person knew the drugs were in the car or house, and that he had control over the drugs.
What does “Poss. CS PG 1” mean in Texas?
“POSS. CS PG 1” is a shorthand reference to Tex. Health & Safety Code Ann. § 481.115. It means possession of a controlled substance in penalty group 1 or 1-B.
What are examples of drugs in Penalty Group 1 (PG-1)?
The following are PG-1 drugs:
- PCP or Angel Dust;
- Ketamine; and
- Fentanyl (listed under PG-1B).
What are the penalties for possession of a controlled substance PG-1?
|Tex. Health and Safety Code.||Drug Amount.||Jail Time.||Fine.|
|§ 481.115 (b).||Less than one gram.||6 months to 2 years in State Jail.||Up to $10,000.00.|
|§ 481.115 (c).||1 gram but less than 4 grams.||2-10 years in TDC.||Up to $10,000.00.|
|§ 481.115 (d).||4 grams or more, but less than 200 grams.||2-20 years in TDC.||Up to $10,000.00.|
|§ 481.115 (e).||200 or more grams, but less than 400 grams.||5-99 years or life in TDC.||Up to $10,000.00.|
|§ 481.115 (f).||400 grams or more.||10-99 years or life in TDC.||Up to $100,000.00.|
Equally important, the most common drug quantities police police arrest people for are either less than a gram or 1-4 grams. These are low-level drug possession cases that the system treats differently.
For instance, the courts favor probation and rehabilitation programs for people arrested for low drug amounts. In contrast, if police arrest someone with 200 or 400 grams of a controlled substance, then these people run a high risk of serving jail time.
In addition, PG 1 includes Oxycontin and Percocet. These drugs carry the same penalty as the street drugs listed above.
Finally, if a person with a clean record is arrested for less than a gram of cocaine, heroin, or meth, then the law requires the judge to give the person probation.
What does “POSS C.S. PG 2” mean in Texas?
“POSS C.S. PG 2” is a shorthand reference to Tex. Health & Safety Code Ann. § 481.116. It means “possession of a controlled substance in penalty group 2.”
What are examples drugs on the PG-2 list?
The following are drugs on the penalty group 2 (PG-2) list:
- Ecstasy or Molly;
- Bath salts;
- Ludes; and
- M-Cat (Mephedrone).
How much jail time can I get for Possession of a Controlled Substance PG-2?
|Tex. Health and Safety Code.||Drug Amount.||Jail time.||Fine.|
|§ 481.116 (b).||Less than one gram.||6 months to 2 years in State Jail.||Up to $10,000.00.|
|§ 481.116 (c).||One gram but less than 4 grams.||2 to 10 years in TDC.||Up to $10,000.00.|
|§ 481.116 (d).||Four grams or more, but less than 400 grams.||2 to 20 years in TDC.||Up to $10,000.00.|
|§ 481.116 (e).||More than 400 grams.||5 to 99 years or life in TDC.||Up to $50,000.00.|
What is simple drug possession in Texas?
Simple drug possession means getting caught with a small amount of drugs. The small amount is almost always for personal use. And simple possession is perhaps the most common drug crime in Texas. The majority of drug cases in state court are for low drug amounts.
To illustrate, many cases involve either less than a gram or 1-4 grams of drugs. As a comparison, most sugar packets for coffee are usually four grams or less. These are small drug amounts consistent with personal use.
In sum, getting caught with less than a gram of cocaine, meth, heroin, oxy, or percocet are simple drug possession cases.
Is simple possession of a controlled substance a felony in Texas?
It can be. But it depends on the type and amount of drugs.
For instance, if police arrest you for possession of a controlled substance under either PG 1 or PG 2, then it will be a felony. As the tables above show, any amount above 0, but less than 1 gram is a felony.
This will be the case even if a person has only less than a gram of heroin, cocaine, or meth. However, some prosecutors will not go after low-level drug offenders. Instead, they will dismiss the charges.
Will I go to jail for a first-time simple drug possession case in Texas?
No–if the person has a clean record and a low drug amount.
To explain, Texas law requires a judge to give first-time drug offenders probation for the following cases:
- Tex. Health & Safety Code Ann. § 481.115 (b) (less than a gram of cocaine, heroin, or meth);
- Tex. Health & Safety Code Ann. § 481.1151 (b) (1);
- Tex. Health & Safety Code Ann. § 481.116 (b) (less than a gram of any drug in PG 2);
- Tex. Health & Safety Code Ann. § 481.121 (b) (3); or
- Tex. Health & Safety Code Ann. § 481.129 (g) (1).
But there are some limitations on this list. You can find them in Tex. Crim. Proc. Code Ann. § 42A.551(b).
Of major interest, this list shows why the drug type and amount matter in a possession case. If you have less than a gram of a drug in PG 1 or PG 2, then you will get probation as a matter of law.
The bottom line is that most first-time offenders with a simple possession case will get probation in Texas. This includes people arrested for less than a gram of cocaine, meth, or heroin.
Can I get pretrial diversion for a simple possession case in San Antonio, Texas?
First-time low level drug offenders are eligible for the pretrial diversion program. If the State accepts the person into the program, then the State will dismiss the charges. In return, when the person completes the program, then the State will agree to expunge that person’s record.
This is a great option for people who may lose a job or not get hired if they have a drug conviction on their record.
What should I expect while I am on probation for a drug case in Texas?
Probation for drug cases in Texas include the following conditions:
- Report to a probation officer;
- Pay fines and court costs;
- Complete community service hours;
- Get tested for drugs while on probation;
- Complete drug classes;
- Attend NA or AA meetings; and
- Not commit any new crimes.
If you can follow these terms and conditions, then the judge will close your case and you do not go to jail. However, if you break these rules, then the judge can either keep you on probation or send you to jail.
Poss CS PG 1-4 Drug Defense.
Drug cases are scary because even a small amount of drugs can lead to a felony conviction. But if you are arrested for a drug charge, then you should review your options carefully. Above all, you should work with an attorney to develop a plan to help you get the best outcome in your case.
Attorney Genaro R. Cortez.