The Law

A person commits an offense of possession of a controlled substance if the person knowingly or intentionally possesses a controlled substance listed in Penalty Group 1, 2, 3, or 4, 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.

Punishment

Each penalty group has an extensive list of common and uncommon drugs and each group has its own level of penalties. Penalty Group 1 and Penalty Group 2 have the maximum punishment range that includes the possibility of receiving a 1^st degree felony, while Penalty group 3 and Penalty Group 4 could allow a misdemeanor charge. <Marijuana> has its own elements and punishment.

Additionally, upon final conviction of drug offenses, a person’s driver’s license is automatically suspended for 180 days by the Texas Department of Public Safety. TxDPS also requires a drug education program that must be completed within the 180 day suspension.

Defense

If you have been charged with possession of a controlled substance, a commissioned peace officer has claimed that you knowingly or intelligently possessed a controlled substance in penalty group 1, 2, 3, or 4, and without a legal exception. The offense of possession of a controlled substance has a few main elements that a prosecutor (State of Texas) will have to prove beyond a reasonable doubt:

• Possession
  • An individual must be in possession of a controlled substance. Possession involves the exercise of control, management, or care over the controlled substances. Possession can also be constructive, when an individual has the ability to control the object (e.g., in passenger seat while the individual is operating the motor vehicle). Presence, accessibility, and proximity are among several issues that may be sufficient to establish possession. If an individual is not in exclusive possession, the State is required to present evidence affirmatively linking the individual to the controlled substance by the facts and circumstances of the specific case.

• Knowingly or intelligently possessing
  • An individual must have knowledge that they possess a controlled substance. If an individual is unaware of their possession, they are not committing a crime. A few examples of situations where an individual might have knowledge they possess an item, but they do not have knowledge they possess a controlled substance are:
    • Borrowing a friend’s car in which the friend has a controlled substance in the trunk and the individual never opened the trunk. An individual has knowledge of their possession of the car, but not the controlled substance inside.
    • Holding a purse for a friend in which the purse has a controlled substance in it. An individual has knowledge of their possession of the purse, but not the controlled substance inside.

• Constitutional and statutory issues
  • These situations arise where the seizure of the controlled substances was illegal. Even though an individual might have possessed a controlled substance illegally, the individual could still be found not-guilty of a crime.

The exact language of this law, further details, and additional punishment concerns can be found in section 481.115, 481.1151, 481.116, 481.117, and 481.118 of the Texas Health & Safety Code [Chapter 481 – Texas Controlled Substances Act] (see Links). None of this information can take place of the information, knowledge, and expertise provided by a licensed attorney.