Manufacture, Delivery, or Possession of Miscellaneous Substances: Texas Health and Safety Code §481.119

The Texas Manufacture, Delivery, or Possession of Miscellaneous Substances law gives police the right to arrest you if they believe you manufactured, delivered, or possessed a scheduled controlled substance listed by the Commissioner of State Health Services but not already included in a statutory penalty group.

The Texas legislature codified this criminal offense in Texas Health and Safety Code Section 481.119. The law was not amended in 2023. It was most recently updated in 2021 by creating a defense to prosecution for this offense.

The Health and Safety Code classifies the Texas Manufacture, Delivery, or Possession of Miscellaneous Substances law under Title 6 “Food, Drugs, Alcohol, and Hazardous Substances,” Chapter 481 “Texas Controlled Substances Act.” Learn more about the Texas offense of Manufacture, Delivery, or Possession of Miscellaneous Substances below.

What is the current Texas law about Manufacture, Delivery, or Possession of Miscellaneous Substances?

The current Texas law defines the offense of Manufacture, Delivery, or Possession of Miscellaneous Substances in Health and Safety Code Section §481.119 as follows:^[1]

(a) A person commits an offense if the person knowingly manufactures, delivers, or possesses with intent to deliver a controlled substance listed in a schedule by an action of the commissioner under this chapter but not listed in a penalty group. An offense under this subsection is a Class A misdemeanor, except that the offense is:

(1) a state jail felony, if the person has been previously convicted of an offense under this subsection; or

(2) a felony of the third degree, if the person has been previously convicted two or more times of an offense under this subsection.

(b) A person commits an offense if the person knowingly or intentionally possesses a controlled substance listed in a schedule by an action of the commissioner under this chapter but not listed in a penalty group. An offense under this subsection is a Class B misdemeanor.

Learn more about schedules and penalty groups.

What is a scheduled drug?

The Commissioner of State Health Services is responsible for publishing a list of controlled substances and classifying them as either Schedule I, Schedule II, Schedule III, Schedule IV, and Schedule V.^[2]

The Texas Commissioner of State Health Services regularly posts updates to the controlled substance list (see the footnote for a link to the list).^[3]

What changed in 2021?

In 2021, the Texas legislature created a defense to prosecution of offenses under subsection (b) for people who were providing emergency medical assistance or who were victims of a possible overdose for which medical assistance was requested.^[4] Certain restrictions apply to the this defense.^[5]

How can I be charged with a Manufacture, Delivery, or Possession of Miscellaneous Substances offense in Texas?

You can be charged with Manufacture, Delivery, or Possession of Miscellaneous Substances if the state’s attorneys believe that each of the elements of 481.119(a) as described in the section above have been met.

You can be charged with this offense even if you did not know it was an illegal “Miscellaneous Substance.”

What is the statute of limitation for Manufacture, Delivery, or Possession of Miscellaneous Substances in Texas?

Misdemeanor level Manufacture, Delivery, or Possession of Miscellaneous Substances charges have a two-year limitations period.^[6] Felony level offenses have a three-year limitations period.^[7]

What is the penalty for a Texas Manufacture, Delivery, or Possession of Miscellaneous Substances offense?

A conviction for Manufacture, Delivery, or Possession of Miscellaneous Substances under subsection (a) (manufacturing, delivery or “possession with intent”) is punished as a Class A misdemeanor,^[8] with a maximum possible fine under Texas state law of up to $4,000 and jail time of up to one year, unless one of the two exceptions also described in subsection (a)) applies:

• If you have been previously convicted of this offense, then a conviction for Manufacture, Delivery, or Possession of Miscellaneous Substances is punished as a State Jail Felony, with a maximum possible fine under Texas state law of up to $10,000 and jail time of up to 2 years.
• If you have been previously convicted of this offense two or more times, then a conviction for Manufacture, Delivery, or Possession of Miscellaneous Substances is punished as a Felony of the Third Degree, with a maximum possible fine under Texas state law of up to $10,000 and prison time of up to 10 years.

A conviction for Manufacture, Delivery, or Possession of Miscellaneous Substances under subsection (b) (“simple possession”) is punished as a Class B misdemeanor,^[9] with a maximum possible fine under Texas state law of up to $2,000 and jail time of up to 180 days.

The Drug-Free Zone Penalty Enhancement

The Texas Drug-Free Zone penalty enhancement applies to this offense. This penalty enhancement applies if the offense was committed: (1) in, on, or within 1,000 feet of any real property that is owned, rented, or leased to a school or school board, the premises of a public or private youth center, or a playground; (2) on a school bus; or (3) by any unauthorized person 18 years of age or older, in, on, or within 1,000 feet of premises owned, rented, or leased by a general residential operation operating as a residential treatment center.^[10]

Under this enhancement provision, the Class A misdemeanor penalty level of Manufacture, Delivery, or Possession of Miscellaneous Substances may be enhanced to the state jail felony penalty level,^[11] Additionally, the Class B misdemeanor penalty level of this offense may be increased to a Class A misdemeanor.^[12]

Can you get probation for Manufacture, Delivery, or Possession of Miscellaneous Substances in Texas?

The Texas Code of Criminal Procedure allows both judges and juries to grant probation for Manufacture, Delivery, or Possession of Miscellaneous Substances, and judges are also allowed to accept deferred adjudication plea deals.^[13]

Note, however, that no matter the offense, neither judges nor juries may recommend community supervision for any suspended sentence of over 10 years.^[14] Also, judges may not grant community supervision after a conviction if (1) the defendant used or exhibited a deadly weapon during the commission of the felony or immediate flight thereafter and (2) the defendant used or exhibited the deadly weapon himself or was a party to the offense and knew that a deadly weapon would be used or exhibited.^[15]

Additionally, if you have been previously convicted of an offense for which punishment was increased under the Drug-Free Zone penalty enhancement, convictions for Manufacture, Delivery, or Possession of Miscellaneous Substances are not eligible for community supervision or deferred adjudication.^[16]

What level of crime is Manufacture, Delivery, or Possession of Miscellaneous Substances in Texas?

The Health and Safety Code classifies Manufacture, Delivery, or Possession of Miscellaneous Substances as a Class B misdemeanor, Class A misdemeanor, state jail felony, or third degree felony.

Learn more about the penalty range for this offense in the section above.

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Legal References:

^1. Texas Health and Safety Code §481.119. This law is current as of 2024.^2. Texas Health And Safety Code §481.132(a)^3. The Department of State Health Services Controlled Substances List^4. Texas Health And Safety Code §481.119(c), as enacted by HB 1694, 87th Texas Legislature (RS), Section 8^5. See Texas Health And Safety Code §481.119(d)&(e)^6. Code of Criminal Procedure 12.02(a)^7. See Code of Criminal Procedure 12.01(9)^8. Texas Health And Safety Code §481.119(a)^9. Texas Health And Safety Code §481.119(b)^10. Texas Health And Safety Code §481.134(e)^11. Texas Health And Safety Code §481.119(b)^12 Texas Health And Safety Code §481.119(f)^13. See Chapter 42, Texas Code of Criminal Procedure, Art. 42A.054, Art. 42A.056, Art. 42A.102 .^14. Art. 42A.053(c), Texas Code of Criminal Procedure^15. Art. 42A.054(b), Texas Code of Criminal Procedure^16. See Art. 42A.054(a)(17)(B), Texas Code of Criminal Procedure, Art. 42A.056(7), Texas Code of Criminal Procedure, and Art. 42A.102(b)(1)(D), Texas Code of Criminal Procedure