Texas Health & Safety Code Offenses 481.117 – Possession of Substance in Penalty Group 3

WHAT IS POSSESSION OF SUBSTANCE IN PENALTY GROUP 3 IN TEXAS?

The Texas law against possession of substance in Penalty Group 3 prohibits having care, custody, or control of a controlled substance listed in Penalty Group 3.

• 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 3 in Texas? Texas Health and Safety Code Section 481.104 lists the following controlled substances in Penalty Group 3:
• a material, compound, mixture, or preparation that contains any quantity of the following substances having a potential for abuse associated with a stimulant effect on the central nervous system:
  • Methylphenidate and its salts; and
  • Phenmetrazine and its salts;
• a material, compound, mixture, or preparation that contains any quantity of the following substances having a potential for abuse associated with a depressant effect on the central nervous system:
  • a substance that contains any quantity of a derivative of barbituric acid, or any salt of a derivative of barbituric acid not otherwise described by this subsection;
  • a compound, mixture, or preparation containing amobarbital, secobarbital, pentobarbital, or any salt of any of these, and one or more active medicinal ingredients that are not listed in any penalty group;
  • a suppository dosage form containing amobarbital, secobarbital, pentobarbital, or any salt of any of these drugs, and approved by the United States Food and Drug Administration for marketing only as a suppository;
    • Alprazolam;
    • Amobarbital;
    • Bromazepam;
    • Camazepam;
    • Carisoprodol;
    • Chlordiazepoxide;
    • Chlorhexadol;
    • Clobazam;
    • Clonazepam;
    • Clorazepate;
    • Clotiazepam;
    • Cloxazolam;
    • Delorazepam;
    • Diazepam;
    • Estazolam;
    • Ethyl loflazepate;
    • Etizolam;
    • Fludiazepam;
    • Flurazepam;
    • Glutethimide;
    • Halazepam;
    • Haloxzolam;
    • Ketazolam;
    • Loprazolam;
    • Lorazepam;
    • Lormetazepam;
    • Lysergic acid, including its salts, isomers, and salts of isomers;
    • Lysergic acid amide, including its salts, isomers, and salts of isomers;
    • Mebutamate;
    • Medazepam;
    • Methyprylon;
    • Midazolam;
    • Nimetazepam;
    • Nitrazepam;
    • Nordiazepam;
    • Oxazepam;
    • Oxazolam;
    • Pentazocine, its salts, derivatives, or compounds or mixtures thereof;
    • Pentobarbital;
    • Pinazepam;
    • Prazepam;
    • Quazepam;
    • Secobarbital;
    • Sulfondiethylmethane;
    • Sulfonethylmethane;
    • Sulfonmethane;
    • Temazepam;
    • Tetrazepam;
    • Tiletamine and zolazepam in combination, and its salts. (some trade or other names for a tiletamine-zolazepam combination product: Telazol, for tiletamine: 2-(ethylamino)-2-(2-thienyl)-cyclohexanone, and for zolazepam: 4-(2-fluorophenyl)-6, 8-dihydro-1,3,8,-trimethylpyrazolo-[3,4-e](1,4)-d diazepin-7(1H)-one, flupyrazapon);
    • Tramadol;
    • Triazolam;
    • Zaleplon;
    • Zolpidem; and
    • Zopiclone;
• Nalorphine;
• a material, compound, mixture, or preparation containing limited quantities of the following narcotic drugs, or any of their salts:
  • not more than 1.8 grams of codeine, or any of its salts, per 100 milliliters or not more than 90 milligrams per dosage unit, with an equal or greater quantity of an isoquinoline alkaloid of opium;
  • not more than 1.8 grams of codeine, or any of its salts, per 100 milliliters or not more than 90 milligrams per dosage unit, with one or more active, nonnarcotic ingredients in recognized therapeutic amounts;
  • not more than 300 milligrams of dihydrocodeinone (hydrocodone), or any of its salts, per 100 milliliters or not more than 15 milligrams per dosage unit, with a fourfold or greater quantity of an isoquinoline alkaloid of opium;
  • not more than 300 milligrams of dihydrocodeinone (hydrocodone), or any of its salts, per 100 milliliters or not more than 15 milligrams per dosage unit, with one or more active, nonnarcotic ingredients in recognized therapeutic amounts;
  • not more than 1.8 grams of dihydrocodeine, or any of its salts, per 100 milliliters or not more than 90 milligrams per dosage unit, with one or more active, nonnarcotic ingredients in recognized therapeutic amounts;
  • not more than 300 milligrams of ethylmorphine, or any of its salts, per 100 milliliters or not more than 15 milligrams per dosage unit, with one or more active, nonnarcotic ingredients in recognized therapeutic amounts;
  • not more than 500 milligrams of opium per 100 milliliters or per 100 grams, or not more than 25 milligrams per dosage unit, with one or more active, nonnarcotic ingredients in recognized therapeutic amounts;
  • not more than 50 milligrams of morphine, or any of its salts, per 100 milliliters or per 100 grams with one or more active, nonnarcotic ingredients in recognized therapeutic amounts; and
  • not more than 1 milligram of difenoxin and not less than 25 micrograms of atropine sulfate per dosage unit;
• a material, compound, mixture, or preparation that contains any quantity of the following substances:
  • Barbital;
  • Chloral betaine;
  • Chloral hydrate;
  • Ethchlorvynol;
  • Ethinamate;
  • Meprobamate;
  • Methohexital;
  • Methylphenobarbital (Mephobarbital);
  • Paraldehyde;
  • Petrichloral; and
  • Phenobarbital;
• Peyote, unless unharvested and growing in its natural state, meaning all parts of the plant classified botanically as Lophophora, whether growing or not, the seeds of the plant, an extract from a part of the plant, and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or extracts;
• unless listed in another penalty group, a material, compound, mixture, or preparation that contains any quantity of the following substances having a stimulant effect on the central nervous system, including the substance’s salts, optical, position, or geometric isomers, and salts of the substance’s isomers, if the existence of the salts, isomers, and salts of isomers is possible within the specific chemical designation:
  • Benzphetamine;
  • Cathine [(+)-norpseudoephedrine];
  • Chlorphentermine;
  • Clortermine;
  • Diethylpropion;
  • Fencamfamin;
  • Fenfluramine;
  • Fenproporex;
  • Mazindol;
  • Mefenorex;
  • Modafinil;
  • Pemoline (including organometallic complexes and their chelates);
  • Phendimetrazine;
  • Phentermine;
  • Pipradrol;
  • Sibutramine; and
  • SPA [(-)-1-dimethylamino-1,2-diphenylethane];
• unless specifically excepted or unless listed in another penalty group, a material, compound, mixture, or preparation that contains any quantity of the following substance, including its salts:
  • Dextropropoxyphene (Alpha-(+)-4-dimethylamino-1,2-diphenyl-3-methyl-2-propionoxybutane);
• an anabolic steroid, including any drug or hormonal substance, or any substance that is chemically or pharmacologically related to testosterone, other than an estrogen, progestin, dehydroepiandrosterone, or corticosteroid, and promotes muscle growth, including the following drugs and substances and any salt, ester, or ether of the following drugs and substances:
  • Androstanediol;
  • Androstanedione;
  • Androstenediol;
  • Androstenedione;
  • Bolasterone;
  • Boldenone;
  • Calusterone;
  • Clostebol;
  • Dehydrochlormethyltestosterone;
  • Delta-1-dihydrotestosterone;
  • Dihydrotestosterone (4-dihydrotestosterone);
  • Drostanolone;
  • Ethylestrenol;
  • Fluoxymesterone;
  • Formebulone;
  • Furazabol;
  • 13beta-ethyl-17beta-hydroxygon-4-en-3-one;
  • 4-hydroxytestosterone;
  • 4-hydroxy-19-nortestosterone;
  • Mestanolone;
  • Mesterolone;
  • Methandienone;
  • Methandriol;
  • Methenolone;
  • 17alpha-methyl-3beta, 17 beta-dihydroxy-5alpha-androstane;
  • 17alpha-methyl-3alpha, 17 beta-dihydroxy-5alpha-androstane;
  • 17alpha-methyl-3beta, 17beta-dihydroxyandrost-4-ene;
  • 17alpha-methyl-4-hydroxynandrolone;
  • Methyldienolone;
  • Methyltestosterone;
  • Methyltrienolone;
  • 17alpha-methyl-delta-1-dihydrotestosterone;
  • Mibolerone;
  • Nandrolone;
  • Norandrostenediol;
  • Norandrostenedione;
  • Norbolethone;
  • Norclostebol;
  • Norethandrolone;
  • Normethandrolone;
  • Oxandrolone;
  • Oxymesterone;
  • Oxymetholone;
  • Stanozolol;
  • Stenbolone;
  • Testolactone;
  • Testosterone;
  • Tetrahydrogestrinone; and
  • Trenbolone; and
• Salvia divinorum, unless unharvested and growing in its natural state, meaning all parts of that plant, whether growing or not, the seeds of that plant, an extract from a part of that plant, and every compound, manufacture, salt, derivative, mixture, or preparation of that plant, its seeds, or extracts, including Salvinorin A.

Penalty Group 3 does not include a compound, mixture, or preparation containing a stimulant substance listed in Subsection (a)(1) if the compound, mixture, or preparation contains one or more active medicinal ingredients not having a stimulant effect on the central nervous system and if the admixtures are included in combinations, quantity, proportion, or concentration that vitiate the potential for abuse of the substances that have a stimulant effect on the central nervous system.

Penalty Group 3 does not include a compound, mixture, or preparation containing a depressant substance listed in Subsection (a)(2) or (a)(5) if the compound, mixture, or preparation contains one or more active medicinal ingredients not having a depressant effect on the central nervous system and if the admixtures are included in combinations, quantity, proportion, or concentration that vitiate the potential for abuse of the substances that have a depressant effect on the central nervous system.

WHAT IS THE POSSESSION OF SUBSTANCE IN PENALTY GROUP 3 LAW IN TEXAS?

Tex. Health & Safety Code § 481.117. POSSESSION OF SUBSTANCE IN PENALTY GROUP 3.

(a) Except as authorized by this chapter, a person commits an offense if the person knowingly or intentionally possesses a controlled substance listed in Penalty Group 3, unless the person obtained the substance directly from or under a valid prescription or order of a practitioner acting in the course of professional practice.

(b) An offense under Subsection (a) is a Class A misdemeanor if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, less than 28 grams.

(c) An offense under Subsection (a) is a felony of the third degree if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, 28 grams or more but less than 200 grams.

(d) An offense under Subsection (a) is a felony of the second degree, if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, 200 grams or more but less than 400 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 five years, and a fine not to exceed $50,000, if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, 400 grams or more.

(f) It is a defense to prosecution for an offense punishable under Subsection (b) that the actor:

(1) was the first person to request emergency medical assistance in response to the possible overdose of another person and:

(A) made the request for medical assistance during an ongoing medical emergency;

(B) remained on the scene until the medical assistance arrived; and

(C) cooperated with medical assistance and law enforcement personnel; or

(2) was the victim of a possible overdose for which emergency medical assistance was requested, by the actor or by another person, during an ongoing medical emergency.

(g) The defense to prosecution provided by Subsection (f) is not available if:

(1) at the time the request for emergency medical assistance was made:

(A) a peace officer was in the process of arresting the actor or executing a search warrant describing the actor or the place from which the request for medical assistance was made; or

(B) the actor is committing another offense, other than an offense punishable under Section 481.115(b), 481.1151(b)(1), 481.116, 481.1161(b)(1) or (2), 481.118(b), or 481.121(b)(1) or (2), or an offense under Section 481.119(b), 481.125(a), 483.041(a), or 485.031(a);

(2) the actor has been previously convicted of or placed on deferred adjudication community supervision for an offense under this chapter or Chapter 483 or 485;

(3) the actor was acquitted in a previous proceeding in which the actor successfully established the defense under that subsection or Section 481.115(g), 481.1151(c), 481.116(f), 481.1161(c), 481.118(f), 481.119(c), 481.121(c), 481.125(g), 483.041(e), or 485.031(c); or

(4) at any time during the 18-month period preceding the date of the commission of the instant offense, the actor requested emergency medical assistance in response to the possible overdose of the actor or another person.

(h) The defense to prosecution provided by Subsection (f) does not preclude the admission of evidence obtained by law enforcement resulting from the request for emergency medical assistance if that evidence pertains to an offense for which the defense described by Subsection (f) is not available.

WHAT IS THE PENALTY CLASS FOR POSSESSION OF SUBSTANCE IN PENALTY GROUP 3 IN TEXAS?

The penalty classification for manufacturing or delivering a controlled substance in Penalty Group 3 depends on the aggregate weight of the controlled substance in the person’s possession.

• Class A misdemeanor, punishable by up to one year in county jail, if:
  • the aggregate weight was less than 28 grams;
• Third degree felony, punishable by two to ten years in prison, if:
  • the aggregate weight was 28 grams or more but less than 200 grams;
• Second degree felony, punishable by two to 20 years in prison, if:
  • the aggregate weight was 200 grams or more but less than 400 grams;
• First degree felony, punishable by five to 99 years or life in prison, if:
  • the aggregate weight was 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 possession of a controlled substance in Penalty Group 3 categorized as a felony, other than a state jail felony, if the offense was committed in a “drug-free zone.” If the offense was a misdemeanor committed in a drug-free zone, the penalty classification is increased to a state jail felony.

• 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 POSSESSION OF SUBSTANCE IN PENALTY GROUP 3 IN TEXAS?

The punishment range for possession of a controlled substance in Penalty Group 3 corresponds to the penalty classification, which depends on the aggregate weight of the controlled substance.

• Over 400 grams (first degree felony):
  • five to 99 years or life in prison, maximum $50,000 fine;
• 200 grams or more but less than 400 grams (second degree felony):
  • two to 20 years in prison, maximum $10,000 fine;
• 28 grams or more but less than 200 grams (third degree felony):
  • two to ten years in prison, maximum $10,000 fine;
• Less than 28 grams (Class A misdemeanor):
  • up to one year in jail, maximum $4,000 fine.

WHAT ARE THE PENALTIES FOR POSSESSION OF SUBSTANCE IN PENALTY GROUP 3 IN TEXAS?

A person charged with possession of a controlled substance in Penalty Group 3 may be eligible for probation after a conviction, or deferred adjudication without a conviction. The term of community supervision for possession of PG 3 charged as a Class A misdemeanor may not exceed two years.

The period of deferred adjudication for a third degree felony possession of a controlled substance in PG 3 charge may not exceed ten years, and the probation period may range from two and five years. If charged with a second degree felony or first degree felony possession of a controlled substance in PG 3, the maximum supervision period is ten years.

WHAT ARE THE DEFENSES TO POSSESSION OF SUBSTANCE IN PENALTY GROUP 3 IN TEXAS?

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.

• What is the Good Samaritan defense in Texas? The Texas Health and Safety Code permits a person accused of possession of a controlled substance in PG 3 to raise a Good Samaritan defense at trial if the person was the first to request emergency medical assistance in response to an ongoing possible overdose of the person or another, stayed until first responders arrived, and cooperated with medical and law enforcement personnel.If the accused has successfully raised the Good Samaritan defense in a previous case, or called 911 for an overdose within the 18-month period preceding the instant offense, the person may not raise the Good Samaritan defense at a subsequent trial for possession of a controlled substance.

• 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 Penalty Group is codeine in Texas? Penalty Group 1 includes codeine “not listed in Penalty Group 3 or 4.” This means if the State alleges the accused possessed codeine, the State must prove the person possessed a substance containing more than 1.8 grams of codeine per 100 milliliters, or more than 300 milligrams of dihydrocodeine per 100 milliliters.In Miles v. State, the defendant was convicted of possession of over 200 grams of codeine in PG1 with intent to deliver. The lab results showed the codeine he possessed had a concentration of 158 milligrams of codeine per 100 milliliters, which is a substance in PG 3. The Court of Criminal Appeals reversed the defendant’s conviction, and acquitted him because of the failure to allege and prove the codeine was of a concentration listed in PG 1.

• 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 POSSESSION OF SUBSTANCE IN PENALTY GROUP 3 IN TEXAS?

The limitation period for possession of a substance in Penalty Group 3 categorized as a misdemeanor is two years. If classified as a felony, the limitation period is three years.

POSSESSION OF SUBSTANCE IN PENALTY GROUP 3 IN TEXAS

Texas law punishes possessing controlled substances in Penalty Group 3 with the severity of the punishment increasing with the amount possessed.

TEXAS POSSESSION OF SUBSTANCE IN PENALTY GROUP 3 COURT CASES

The case law regarding possession of a controlled substance in Penalty Group 3 in Texas illustrates the statute’s application.

• In Okoro v. State, the defendant was stopped for speeding while heading to Dallas from Houston, Texas. Based on the defendant’s nervous demeanor, the trooper called his drug dog, who alerted to the presence of narcotics. The trooper found 54 pounds of Xanax bars, 13 pounds of counterfeit hydrocodone, 45 grams of counterfeit oxycodone, and five grams of methamphetamine. The defendant was convicted of possession of controlled substances in PG 1 (opiates and methamphetamine) and PG 3 (xanax). The appellate court affirmed.