The Law

A person commits an offense of possession of drug paraphernalia if the person knowingly or intentionally uses or possesses with intent to use drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, or conceal a controlled substance in violation of the Texas Controlled Substances Act to inject, ingest, inhale, or otherwise introduce into the human body a controlled substance prohibited by law.

Punishment

An offense for possession of drug paraphernalia is a <Class C misdemeanor>. There are stricter punishments if an individual delivered the drug paraphernalia or if an individual delivers drug paraphernalia to someone younger than 18; these different scenarios could make the punishment range from a <class A misdemeanor> to a <state jail felony>.

Defense

If you have been charged with possession of drug paraphernalia, a commissioned peace officer has claimed that you knowingly or intelligently possessed with intent to use or used drug paraphernalia. The offense of possession of drug paraphernalia has a few main elements that a prosecutor will have to prove beyond a reasonable doubt:

• Possession
  • An individual must be in possession of drug paraphernalia. 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 are in possession of drug paraphernalia. 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 are possessing an item, but they do not have knowledge they are possessing drug paraphernalia are:
    • Borrowing a friend’s car in which the friend has drug paraphernalia in the trunk and the individual never opened the trunk. An individual has knowledge of their possession of the car, but not the drug paraphernalia inside.
    • Holding a purse for a friend in which the purse has drug paraphernalia in it. An individual has knowledge of their possession of the purse, but not the drug paraphernalia inside.

• Constitutional and statutory issues
  • These situations mainly arise where the seizure of drug paraphernalia was illegal. Even though an individual might have been possessing drug paraphernalia 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 481.125 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.