WHAT IS MANUFACTURE OR DELIVERY OF SUBSTANCE IN PENALTY GROUP 1-B IN TEXAS?
The Texas law against manufacture or delivery of substance in Penalty Group 1-B prohibits making, producing, transporting, transferring, or otherwise possessing with the intent to deliver a controlled substance listed in Penalty Group 1-B.
- What is a controlled substance? Texas Health and Safety Code Section 481.002 defines a “controlled substance” as a substance, including a drug, listed in Schedules I through V or Penalty Group 1, 1-A, 1-B, 2, 2-A, 3, or 4. The term includes the aggregate weight of any mixture, solution, or other substance containing a controlled substance, but does not include “hemp” as defined by Texas Agriculture Code Section 121.001, or the tetrahydrocannabinols in hemp.
- What is the difference between Schedules I, II, III, IV, and V and the penalty groups of controlled substances? Controlled substances are divided into five “schedules” based on potential for abuse or addiction, which dictate the rules medical professionals must follow in prescribing medications listed in each schedule. Schedule I, for example, are the most addictive substances, and may generally not be prescribed. Substances in Schedule I are also typically in Penalty Group 1, and are considered illegal under most circumstances.Controlled substances are divided into “penalty groups” for determining criminal classification and penalties.
- What controlled substances are in Penalty Group 1-B in Texas? According to Texas Health and Safety Code Section 481.1022, Penalty Group 1-B consists of fentanyl, alpha-methylfentanyl, and any other derivative of fentanyl.
WHAT IS THE MANUFACTURE OR DELIVERY OF SUBSTANCE IN PENALTY GROUP 1-B LAW IN TEXAS?
Tex. Health & Safety Code § 481.1123. OFFENSE: MANUFACTURE OR DELIVERY OF SUBSTANCE IN PENALTY GROUP 1-B.
(a) Except as authorized by this chapter, a person commits an offense if the person knowingly manufactures, delivers, or possesses with intent to deliver a controlled substance listed in Penalty Group 1-B.
(b) An offense under Subsection (a) is a state jail felony if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, less than one gram.
(c) An offense under Subsection (a) is a felony of the second degree if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, one gram or more but less than four grams.
(d) An offense under Subsection (a) is punishable by imprisonment in the Texas Department of Criminal Justice for life or for a term of not more than 99 years or less than 10 years, and a fine not to exceed $20,000, if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, four grams or more but less than 200 grams.
(e) An offense under Subsection (a) is punishable by imprisonment in the Texas Department of Criminal Justice for life or for a term of not more than 99 years or less than 15 years, and a fine not to exceed $200,000, if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, 200 grams or more but less than 400 grams.
(f) An offense under Subsection (a) is punishable by imprisonment in the Texas Department of Criminal Justice for life or for a term of not more than 99 years or less than 20 years, and a fine not to exceed $500,000, if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, 400 grams or more.
WHAT IS THE PENALTY CLASS FOR MANUFACTURE OR DELIVERY OF SUBSTANCE IN PENALTY GROUP 1-B IN TEXAS?
The penalty classification for manufacturing or delivering a controlled substance in Penalty Group 1-B depends on the aggregate weight of the controlled substance manufactured, delivered, or in the person’s possession.
- State jail felony, punishable by 180 days to two years in a state jail facility, if:
- the aggregate weight was less than one gram;
- Second degree felony, punishable by two to 20 years in prison, if:
- the aggregate weight was one gram or more but less than four grams;
- First degree felony, punishable by ten to 99 years or life in prison, if:
- the aggregate weight is four grams or more but less than 200 grams;
- First degree felony, punishable by 15 to 99 years or life in prison, if:
- the aggregate weight is 200 grams or more but less than 400 grams;
- First degree felony, punishable by 20 to 99 years or life in prison, if:
- the aggregate weight is 400 grams or more.
Texas Health and Safety Code Section 481.134 increases the minimum prison sentence by five years and doubles the fine for manufacture or delivery of a controlled substance in Penalty Group 1-B categorized as a felony, other than a state jail felony, if the offense was committed in a “drug-free zone.” The offense may be increased to the next highest category if committed within an institution of higher learning, within 300 feet of a public swimming pool or arcade, or within 1,000 feet of a residential treatment center.
- What is a drug-free zone in Texas? Texas Health and Safety Code Section 481.134 describes a drug-free zone as:
-
- in, on, or within 1,000 feet of premises of a school (including a day-care center), of premises owned, rented, or leased by an institution of higher learning, the premises of a public or private youth center, or a playground;
- on a school bus; or
- in, on, or within 1,000 feet of premises owned, rented, or leased by a general residential operation operating as a residential treatment center.
WHAT IS THE PUNISHMENT RANGE FOR MANUFACTURE OR DELIVERY OF SUBSTANCE IN PENALTY GROUP 1-B IN TEXAS?
The punishment range for manufacturing or delivering a controlled substance in Penalty Group 1-B corresponds to the penalty classification, which depends on the aggregate weight of the controlled substance.
- 400 grams or more (first degree felony):
- 20 to 99 years or life in prison, maximum $500,000 fine;
- 200 grams or more but less than 400 grams (first degree felony):
- 15 to 99 years or life in prison, maximum $200,000 fine;
- Four grams or more but less than 200 grams (first degree felony):
- ten to 99 years or life in prison, maximum $20,000 fine;
- One gram or more but less than four grams (second degree felony):
- two to 20 years in prison, maximum $10,000 fine;
- Less than one gram (state jail felony):
- 180 days to two years in a state jail facility, maximum $10,000 fine.
WHAT ARE THE PENALTIES FOR MANUFACTURE OR DELIVERY OF SUBSTANCE IN PENALTY GROUP 1-B IN TEXAS?
A person charged with manufacturing or delivering less than a gram of a substance in Penalty Group 1-B is eligible for probation after a conviction, or deferred adjudication without a conviction, for a period between two to five years, with the possibility of extending supervision for up to ten years.
A person charged with manufacturing or delivering between one gram and 200 grams of fentanyl may be eligible for probation after a conviction, or deferred adjudication without a conviction, for a period not to exceed ten years. A person may only receive probation from a jury after a guilty finding if the person has no prior felony convictions, and the jury assessed a prison sentence of ten years or less.
WHAT ARE THE DEFENSES TO MANUFACTURE OR DELIVERY OF SUBSTANCE IN PENALTY GROUP 1-B IN TEXAS?
The exemptions in Texas Health and Safety Code Section 481.111 do not apply to this statute. Texas Health and Safety Code Section 481.123 provides a defense to a person charged with manufacturing, delivering, or possessing a controlled substance if the substance was approved as a new drug by the FDA, or was exempt by the FDA for investigational use.
A person accused of manufacturing or delivering a substance in Penalty Group 1-B may attempt to negate at least one of the elements the State must prove at trial.
- What shows proof of intent to deal drugs in Texas? To convict a person of the higher offense of possession with intent to deliver a controlled substance, the State must show the accused possessed drugs for a purpose other than personal use. This may be shown by circumstantial evidence, the high volume of drugs, or any admissible statements the accused made during the investigation.For example, in Vega v. State, the defendant was sitting in the driver’s seat of a car with his wife when police approached. They saw marijuana in plain view, searched the car, and found a backpack on the floor when his feet were. Inside the backpack, police found ten baggies of methamphetamine. The backpack also had the defendant’s wallet and other possessions. He was convicted of possession with intent to deliver a controlled substance in PG1 (methamphetamine), and the appellate court affirmed.
- Is a lab test required for drug cases in Texas? Generally, yes. A person should not be convicted of possessing, manufacturing, or delivering a controlled substance in a specifically alleged penalty group without a lab report verifying the drug was the controlled substance alleged.In Ex parte Saucedo, the defendant was indicted for possession of methamphetamine, a controlled substance in Penalty Group 1. He pled before the lab results were sent to the prosecution, and was sentenced. The lab report revealed the defendant was actually in possession of methylethcathinone, a substance in Penalty Group 2. The Court of Criminal Appeals granted habeas relief, and cautioned all trial attorneys and defendants against pleading without all the evidence.
- What is drug possession in Texas? Texas Health and Safety Code Section 481.002 defines “possession” as actual care, custody, control, or management. Possession does not require proof a person is physically holding the controlled substance.In Rodriguez v. State, No. 04-21-00503-CR, the defendant’s girlfriend let her friend drive the defendant to the store. Police stopped the car while the defendant was in the passenger seat, and found 0.18 grams of methamphetamine in a chewing tobacco tin in the glove box. The officer noticed tobacco around the defendant’s mouth, so he was charged with and convicted of possession of less than a gram of a controlled substance in Penalty Group 1.The appellate court affirmed. The drugs were conveniently accessible to the defendant on his side of the car, they were in a tobacco tin, and the defendant chewed tobacco.
- What is a search incident to arrest in Texas? The Fourth Amendment to the U.S. Constitution permits police officers to conduct warrantless searches incident to lawful arrests. The justification for permitting such a warrantless search is: (1) the need for officers to seize weapons or other things which might be used to assault an officer or effect an escape; and (2) the need to prevent the loss or destruction of evidence. See State v. Granville, 423 S.W.3d 399, 410 (Tex. Crim. App. 2014).In State v. Sanchez, an officer approached the defendant’s jeep, which was parked in a grassy area next to a bar with the driver’s door open, the engine turned off, and the defendant was asleep in the driver’s seat. The officer woke the defendant up to check on him, and learned he had traffic warrants. Incident to arrest, the officer searched the defendant’s pockets, and he had cocaine. He was then arrested for possession of a controlled substance in PG 1, his car was searched incident to that arrest, and more cocaine was found. The appellate court upheld the car search as a valid search incident to his arrest for possession.In Botello v. State, police responded to an assault-in-progress. The officer spoke to the victim outside the home, who said the defendant was her estranged husband, had assaulted her, and was still inside. The defendant refused to come out, but the victim consented to a search of the home, so police forcefully went inside. Officers immediately arrested the defendant for assault, searched his pockets, and found over 24 grams of heroin. He was convicted of possession of a controlled substance in PG 1, and the appellate court affirmed.
WHAT IS THE STATUTE OF LIMITATIONS FOR MANUFACTURE OR DELIVERY OF SUBSTANCE IN PENALTY GROUP 1-B IN TEXAS?
The limitation period for manufacturing or delivering a substance in Penalty Group 1-B is three years.
MANUFACTURE OR DELIVERY OF SUBSTANCE IN PENALTY GROUP 1-B IN TEXAS
Fentanyl is a cheap, high-potency synthetic opioid that is often mixed with, or falsely sold as, other opiates or prescription drugs in a manner than can lead to accidental overdoses by unsuspecting users. In 2021, the Texas Legislature created a separate penalty group for fentanyl, alpha-methylfentanyl, and any other derivative of fentanyl with new punishment ranges for dealers.
