In Texas, a controlled substance is defined as a substance, including a drug, an adulterant, and a diluent listed in Schedules I through V or Penalty Group 1-4. The term includes the aggregate weight of any mixture, solution, or other substance containing a controlled substance. The term does not include hemp as defined by section 121.001, agriculture code, or the tetrahydrocannabinols in hemp.
Understanding the Texas Controlled Substance Act
The federal controlled substances act was established in the 1970s under President Richard Nixon and created five schedules (classifications) with varying qualifications for substances to be coded in each. Classifications for controlled substances are decided based upon criteria including potential for abuse, currently accepted medical use and treatment to United States and international treaties.
The theory behind the Controlled Substances Act was to design a more comprehensive measure that effectively meets the narcotic/dangerous drug problems at the federal level. This was primarily accomplished by combining all existing federal laws into a single new statute, which greatly changed the nature of federal drug policies and expanded federal law enforcement pertaining to controlled substances. In other words, it was the beginning of the war on drugs.
Texas passed very similar legislation mimicking the federal policies in 1989 called the Texas Controlled Substances Act, also known as Texas Health and Safety Code 481.
Drug laws in Texas can be complicated, confusing and (at multiple times in our history) illegal…
How are Controlled Substances Categorized in Texas?
When looking at drugs, a simple way to classify them is “hard street drugs” versus “recreational drugs.”
“Hard street drugs” are all considered to have no therapeutic value by our federal government. These include, but are not limited to: heroin, GHB, LSD, marijuana, MDMA, mescaline, peyote, and psilocybin. The science behind several of these drugs having no therapeutic value was questioned even in 1970, and in today’s world with advancements in science, there’s no question that most of the substances listed have therapeutic value and should not be listed to schedule one.
As of this date, the governor has yet to correct any of these mistakes and possession of a controlled substance is viewed harshly by Courts in Texas, as even a minimal or “trace amount” of most controlled substances are considered felonies.
Schedule 5 Drugs
Schedule 5 drugs also have accepted legal medical use, limited potential for physical or psychological dependence, and a low risk for addiction or abuse. Examples include Codeine-based cough medicines and CBD.
Schedule 4 Drugs
Schedule 4 drugs also have accepted legal medical uses and are also considered a low potential for physical and or psychological dependence, along with a low risk for addiction or abuse. These drugs include but are not limited to Ambien, Ativan, Xanax, and Valium.
Schedule 3 Drugs
Schedule 3 drugs are accepted as having legal medical use, as they have a lower/moderate potential for physical dependence. Examples of these drugs include anabolic steroids, ketamine, aspirin with codeine, testosterone, and Vicodin.
Schedule 2 Drugs
Drugs on schedule 2 have some restrictive legal medical use, and they include Adderall, cocaine, codeine, crystal meth, Demerol, morphine, opium, oxycontin, PCP, and Percocet. These drugs are still highly regulated as they have a high potential for physical or psychological dependence at a higher rate, or risk for addiction or abuse.
Schedule 1 Drugs
Drugs on the schedule 1 level face the harshest of strict scrutiny in Texas courts. Depending upon the quantity or amount of drugs in your possession, you could potentially be looking at a maximum of 15 years to life in prison, or at a minimum of six months in the state jail for trace amounts.
Defining Possession of a Controlled Substance in Texas
Generally speaking, “personal amounts” (i.e. 4g or less) are treated with a softer hand than amounts over 4g. With most schedule 1 drugs, any amount over 4g with the exception of marijuana is considered a second-degree felony and is punishable by 2-20 years in a Texas prison.
Depending upon your location in the state of Texas, your likelihood of probation versus receiving time in a Texas prison can vary greatly. That likelihood is also unfairly or disproportionately skewed in the negative to minorities or people of poor socioeconomic backgrounds.
Lower amounts of a controlled substance (i.e. less than 4g) are often treated with the possibility of probation which may include drug treatment, drug rehabilitation, continuous monitoring device, or compliance with other court conditions. When larger amounts of controlled substances are involved, courts often view it not as a possession issue but as a distribution issue, or someone is dealing in schedule-one drugs. Harsher penalties are the norm when a defendant is facing distribution charges versus possession.
Marijuana is a tricky one. It is still defined as a schedule-one drug according to the U.S. federal government and the DEA, but specific amounts related to weight for marijuana versus other controlled substances are listed. If you’re facing possession charges for marijuana, it’s important to find an experienced marijuana lawyer to help you.
While there is no legal way to possess any drugs in schedule one, for schedules two through five it is legal to possess a certain amount of the substances with a prescription from a doctor of medicine.
Hire an Expert Texas Criminal Defense Attorney
Understanding the history of drug legislation in our country from a federal level and how it applies to Texas with the Texas Controlled Substances Act is critical when hiring a knowledgeable and experienced criminal defense attorney. Make sure that your drug attorney understands the history, the differences or variants in law and how to exploit weaknesses in the state cases.
Please call to schedule a meeting today with Austin Criminal Lawyer James Gill. The Law Office Of James Gill PLC serves all of Austin, Westlake, Kyle, Buda, San Marcos, Georgetown, Hutto, Cedar Park, and all surrounding Texas communities.