Under Texas law, Drug Possession Charges include both possession of marijuana and possession of a controlled substance. Drug offenses are outlined in Chapter 481 of the Texas Health and Safety Code. In the code, simple drug possession offenses are described separately from charges of drug possession “with intent” to manufacture or deliver illegal drugs. The drug possession charges characterized as possession “with intent” (to manufacture, deliver, etc.) are more serious offenses than drug possession “without intent.” If the drug possession charge is not charged with an intent clause, it is known as “simple possession.”

Texas law categorizes illegal drugs into four different “Penalty Groups,” two subgroups of Penalty Groups, marijuana (Texas law calls it “marihuana” – with an “h” – interestingly enough), and miscellaneous drugs listed by “action of the commissioner.” It is important to know which category a particular drug falls into because the penalties are different for each group are different and the offenses do vary slightly.

All of the “simple possession” crimes share several similarities. For all of the simple drug possession offenses, the state’s attorneys are required to prove that you “knowingly or intentionally possess” or “knowingly possess” (depending on the specific offense) one of the drugs that are defined as illegal. Additionally, each offense shares the exceptions to application that are defined in the chapter.

There was an important update to the law in 2015 regarding Adderall (amphetamine), and Vyvanse (lisdexamfetamine). Senate Bill 172 excluded any FDA-approved substances from Penalty Group 2, even those specifically listed in that section. It appears those cases became class B misdemeanors under “miscellaneous substances” rather than felonies. Adderall and Vyvanse cases that occurred after September 1, 2015, should not be Penalty Group 2 cases. Unfortunately, this loophole was closed by the 85th Texas Legislature with the passage of H.B. 2671 in 2017, and the subsection that removed these FDA-approved from Penalty Group 2 has been repealed.^[1] The loophole closes on September 1, 2017.^[2]

Read answers to questions frequently asked of our Dallas criminal defense attorney drug possession charges in Texas below.

What are the drug possession laws in Texas?

A comprehensive list of “simple” drug possession charges in Texas under Chapter 481 are below:

• Possession of Penalty Group 1 Substances (481.115)
• Possession of Penalty Group 1-A Substances (481.1151)
• Possession of Penalty Group 2 Substances (481.116)
• Possession of Penalty Group 2-A Substances (481.1161)
• Possession of Penalty Group 3 Substances (481.117)
• Possession of Penalty Group 4 Substances (481.118)
• Possession of Penalty Other Substances (481.119)
• Possession of Marihuana (Marijuana) (481.121)
• Possession of Anhydrous Ammonia (481.1245)
• Possession of Drug Paraphernalia (481.125)

What are the jail sentences for drug possession convictions?

The range of punishment for possession of drugs in Penalty Group 1 starts from a state jail felony and goes upward to felonies of the first degree (and even higher). The penalties vary by the weight of the drugs found. Learn about the differences between each class of misdemeanor and degree of felony

(b) An offense under Subsection (a) is a state jail felony if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, less than one gram.

(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, one gram or more but less than four 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, four grams or more but less than 200 grams.

(e) An offense under Subsection (a) is a felony of the first 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.

(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 10 years, and a fine not to exceed $100,000, if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, 400 grams or more.

The range of punishment for possession of drugs in Penalty Group 1-a begins at a state jail felony and goes all the way to a first degree felony and even more serious punishments. The punishment range in the statute is as follows:

(1) a state jail felony if the number of abuse units of the controlled substance is fewer than 20;

(2) a felony of the third degree if the number of abuse units of the controlled substance is 20 or more but fewer than 80;

(3) a felony of the second degree if the number of abuse units of the controlled substance is 80 or more but fewer than 4,000;

(4) a felony of the first degree if the number of abuse units of the controlled substance is 4,000 or more but fewer than 8,000; and

(5) 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 $250,000, if the number of abuse units of the controlled substance is 8,000 or more.

The range of punishment for possession of drugs in Penalty Group 2 starts from a state jail felony and goes upward to felonies of the second degree (and even higher). The penalties vary by the weight of the drugs found.

(b) An offense under Subsection (a) is a state jail felony if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, less than one gram.

(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, one gram or more but less than four 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, four 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.

The range of punishment for possession of drugs in Penalty Group 2-A starts from a state jail felony and goes upward to felonies of the second degree (and even higher). The penalties vary by the weight of the drugs found.

(1) a Class B misdemeanor if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, two ounces or less;

(2) a Class A misdemeanor if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, four ounces or less but more than two ounces;

(3) a state jail felony if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, five pounds or less but more than four ounces;

(4) a felony of the third degree if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, 50 pounds or less but more than 5 pounds;

(5) a felony of the second degree if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, 2,000 pounds or less but more than 50 pounds; and

(6) 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 5 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, more than 2,000 pounds.

The range of punishment for possession of drugs in Penalty Group 3 starts from a state jail felony and goes upward to felonies of the second degree (and even higher). The penalties vary by the weight of the drugs found.

(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.

The range of punishment for possession of drugs in Penalty Group 4 starts from a state jail felony and goes upward to felonies of the second degree (and even higher). The penalties vary by the weight of the drugs found.

(b) An offense under Subsection (a) is a Class B 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.

Simple possession of other Miscellaneous Drugs “listed in a schedule by an action of the commissioner” is a Class A Misdemeanor.

Simple possession of marijuana is punished as follows:

(1) a Class B misdemeanor if the amount of marihuana possessed is two ounces or less;

(2) a Class A misdemeanor if the amount of marihuana possessed is four ounces or less but more than two ounces;

(3) a state jail felony if the amount of marihuana possessed is five pounds or less but more than four ounces;

(4) a felony of the third degree if the amount of marihuana possessed is 50 pounds or less but more than 5 pounds;

(5) a felony of the second degree if the amount of marihuana possessed is 2,000 pounds or less but more than 50 pounds; and

(6) 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 5 years, and a fine not to exceed $50,000, if the amount of marihuana possessed is more than 2,000 pounds.

Learn more about Possession of Marjiuana

What drugs are in Penalty Group 1

The drugs in Penalty Group 1 include 10 different subcategories. Notable drugs included are Cocaine, Oxycodone, Heroin, certain opiates and opium derivatives, ketamine, Rohypnol, and Methadone. Texas Health & Safety Code Section 481.102 lists each of the Penalty Group 1 Substances.

What drugs are in Penalty Group 1-A

Notable drugs in the Penalty Group 1-A group are lysergic acid diethylamide (LSD) and certain other “designer” drugs. Texas Health & Safety Code Section 481.1021 lists each of the Penalty Group 1-A Substances.

What drugs are in Penalty Group 2

Penalty Group 2 consists of a long list of chemicals, but the notable inclusions are PHP and chemicals that are frequently found in “Shrooms” aka “Magic Mushrooms.” Texas Health & Safety Code Section 481.103 lists each of the Penalty Group 2 Substances.

What drugs are in Penalty Group 2-A

Penalty Group 2-A consists of synthetic chemical compounds that are a cannabinoid receptor agonist and mimic the pharmacological effect of naturally occurring cannabinoids. Texas Health & Safety Code Section 481.1031 lists each of the Penalty Group 2-A Substances.

What drugs are in Penalty Group 3

Penalty Group 3 drugs include notable prescription drugs like Testosterone and other anabolic steroids, Alprazolam (Xanax), Clonazepam (Klonopin, among other brand names), Midazolam (Versed, among other brand names), certain opiates, Peyote and Salvia divinorum.Texas Health & Safety Code Section 481.104 lists each of the Penalty Group 3 Substances.

What drugs are in Penalty Group 4

Penalty Group 4 drugs includes certain drugs that are legal but might be abused, including Buprenorphine (used in heroin addiction recovery), codeine (used in cough medicines) and various other drugs. Texas Health & Safety Code Section 481.105 lists each of the Penalty Group 4 Substances.

Am I eligible for probation if I am convicted for drug possession?

You may be eligible for probation if you are convicted for drug possession. However, if the conviction involved a child or certain other child-related circumstances, or if it was a felony offense involving a gun, the offense might be considered a 3g offense. If the drug possession case is a 3g case, you will not be eligible for probation.

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Legal References:

^1. House Bill 2671, Section 3
^2. House Bill 2671, Sections 4-5