Many people assume that consuming a synthetic or “fake” drug isn't illegal. Some synthetic or designer drugs like “fake weed” were legal in Texas and are still legal in other states for many years. But these drugs are no longer legal in our state.
Moreover, you may be surprised to discover how broad selling drugs or “intent to distribute” can be in Texas. Even sharing a drug with a few friends can be “distribution.” You don't have to exchange the drug for money; you simply must deliver it. If you're arrested for possession of drugs with intent to distribute or sell, you could face felony charges for sharing your drugs with a friend, along with steep penalties and jail or prison time. If you're arrested for these drug charges, you need an experienced Texas criminal defense attorney to guide you through the process.
What Are Synthetic Drugs?
Synthetic or designer drugs are those created to imitate the effects of other hallucinogens and narcotics like marijuana, cocaine, LSD, and other drugs. Some of the most popular forms of synthetic drugs in Texas are synthetic cannabinoids. These synthetic cannabinoids are known as spice, K2, fake weed, and kush and are mixes of plant material sprayed with chemicals sprayed on them. It's impossible to know what chemicals a synthetic cannabinoid contains so that they can be quite dangerous, with side effects including:
- Paranoia,
- Anxiety, hallucinogens, and psychosis,
- Nausea and vomiting,
- Tremors and seizures,
- Dilated pupils, and
- A rapid heartbeat.
Other popular synthetic drugs include 25iNBOMe, known as fake LSD, molly, and bath salts. All these synthetic drugs are illegal in Texas.
The Texas Controlled Substances Act
Under the Texas Controlled Substances Act, there are six penalty groups for illegal drugs. Group 1 contains the most addictive drugs and carries the most severe penalties, while Group 4 is the least serious and contains the least severe penalties. The penalties for possession in each group vary based on the amount or weight of drugs at issue. The law also covers synthetic drugs that are chemically similar or have a similar effect as the drugs in each penalty group.
In 2011, the Texas State Legislature added synthetic drugs to the Texas Controlled Substances Act. The Act covers “controlled substance analogues” defined as:
"(A) a substance with a chemical structure substantially similar to the chemical structure of a controlled substance in Schedule I or II or Penalty Group 1, 1-A, 1-B, 2, or 2-A; or
(B) a substance specifically designed to produce an effect substantially similar to, or greater than, the effect of a controlled substance in Schedule I or II or Penalty Group 1, 1-A, 1-B, 2, or 2-A." Tex. Health & Safety Code § 48.002(6) (2015).
In 2015, the legislature amended the law to include any compound, material, or preparation that has any quantity of certain synthetic or natural chemical substances. The amendments to the law in 2011 expressly added synthetic cannabinoids to the Texas Controlled Substances Act. The 2011 and 2015 amendments now make any synthetic drug illegal if it has a chemical structure similar to any drug listed in Group 1, 1-A, 1-B, 2, or 2-A.
Possession of Synthetic Drugs
If you're facing a charge for possession with intent to sell synthetic drugs in Texas, you're likely facing a charge for possession of the drugs as well.
Penalty Group 1
Penalty Group 1 includes opiates, most opium derivatives, and analog or synthetic drugs that are chemically similar. Penalties for simple possession include:
- Less than one gram is a state felony, punishable by jail for 180 days to more than two years.
- One to less than four grams is a third-degree felony, punishable by prison for two to ten years.
- Four to less than 200 grams is a second-degree felony, punishable by prison for five to 99 years or a life sentence.
- More than 200 grams is a first-degree felony, punishable by 10 to 99 years or a life sentence.
Penalty Group 1-A
Group 1-A includes LSD and its analogs. This group is typically classified separately because the drugs are sold by dose rather than weight. Penalties for simple possession of Group 1-A drugs include:
- Possession of fewer than 20 doses is a state jail felony, punishable by jail for 180 days to more than two years.
- Possession of 20 to 79 doses is a third-degree felony, punishable by prison for two to ten years.
- Possession of 80 to 3,999 doses is a second-degree felony, punishable by prison for five to 99 years or a life sentence.
- Possession of 4,000 doses or more is a first-degree felony, punishable by 10 to 99 years or a life sentence.
Penalty Group 2
Penalty Group 2 includes hallucinogens, including their salts and isomers, as well as their analogs. This group includes drugs like psilocybin mushrooms and mescaline. Penalties for simple possession of drugs in Penalty Group 2 include:
- Less than one gram is a state felony, punishable by jail for 180 days to more than two years.
- One to less than four grams is a third-degree felony, punishable by prison for two to ten years.
- Four to less than 200 grams is a second-degree felony, punishable by prison for two to 99 years or a life sentence.
- More than 200 grams is punishable by five to 99 years or a life sentence.
Penalty Group 2-A
Under Texas law, Penalty Group 2-A covers synthetic cannabinoids like spice, K2, and fake weed. While the statute lists many specific illegal compounds, it also covers “any quantity of a synthetic chemical compound that is a cannabinoid receptor agonist and mimics the pharmacological effect of naturally occurring cannabinoids.” Penalties for simple possession of Group 2-A drugs include:
- Possession of fewer than two ounces is a Class B misdemeanor, punishable by up to 180 days in jail and a fine.
- Possession of two to less than four ounces is a Class A misdemeanor, punishable by up to one year in jail and a fine.
- Possession of four ounces to less than five pounds is a state jail felony, punishable by jail for 180 days to more than two years.
- Possession of five to less than 50 pounds is a third-degree felony, punishable by prison for two to ten years.
- Possession of 50 to less than 2,000 pounds is a second-degree felony, punishable by prison from two to twenty years.
- Possession of more than 2,000 pounds is punishable by five to 99 years in prison or a life sentence.
Penalty Group 3
Penalty Group 3 includes drugs that have a depressant effect on the central nervous system, including barbiturates and their analogs. Penalties for simple possession of Penalty Group 3 drugs include:
- Possession of fewer than 28 grams is a Class A misdemeanor, punishable by up to one year in jail and a fine.
- Possession of 28 grams to less than 200 grams is a third-degree felony, punishable by prison for two to ten years.
- Possession of 200 to less than 400 grams is a second-degree felony, punishable by prison from two to twenty years.
- Possession of more than 400 grams is punishable by five to 99 years in prison or a life sentence.
Penalty Group 4
Penalty Group 4 drugs include low doses of narcotics combined with doses of other medications. Examples include Tylenol with codeine, Vicodin, and Ketamine. Penalties for simple possession of Penalty Group 4 drugs in Texas include:
- Possession of fewer than 28 grams is a Class B misdemeanor punishable by up to 180 days in jail and a fine.
- Possession of 28 to less than 200 grams is a third-degree felony, punishable by two to ten years in prison.
- Possession of 200 to less than 400 grams is a second-degree felony with a punishment of two to 20 years in prison.
- Possession of more than 400 grams is punishable by five to 99 years in prison or a life sentence.
For most possession charges, crimes involving children or those that result in injury or death will enhance the penalties by at least one degree unless the crime is already a first-degree felony or carries a life sentence.
Selling Synthetic Drugs
Possession with intent to distribute is a felony in Texas. As a result, penalties for selling synthetic drugs are steeper than simple possession and involve larger quantities. Under Texas law, to “deliver” drugs means:
"to transfer, actually or constructively, to another a controlled substance, counterfeit substance, or drug paraphernalia, regardless of whether there is an agency relationship. The term includes offering to sell a controlled substance, counterfeit substance, or drug paraphernalia." Tex. Health & Safety Code § 481.002(8) (2021).
While “distributing” means “to deliver a controlled substance other than by administering or dispensing the substance.” Tex. Health & Safety Code § 481.002(14) (2021). Selling the drugs to someone isn't necessary to sustain a charge for possession with intent to distribute in Texas.
Penalty Group 1
Distributing Penalty Group 1 drugs, including cocaine, heroin, morphine, oxycodone, and analogs, can carry steep penalties:
- Less than one gram: State jail felony carrying penalties of 180 to two years in jail and up to a $10,000 fine.
- One gram to less than four grams: Second-degree felony, carrying penalties of two to twenty years in prison and up to a $10,000 fine.
- Four grams to less than 200 grams: First-degree felony, punishable by five to 99 years in prison and up to a $10,000 fine.
- 200 to less than 400 grams: Enhanced first-degree felony, carrying penalties of 10 to 99 years in prison and up to a $100,000 fine.
- More than 400 grams: Enhanced first-degree felony, punishable by 15 to 99 years in prison and a fine of up to $250,000.
Penalty Group 1-A
Penalties for distributing Penalty Group 1-A drugs, including hallucinogenic drugs like psilocybin mushrooms, mescaline, and their analogs, include the following penalties:
- Fewer than 20 doses: State jail felony, punishable by 180 days to two years in jail and up to a $10,000 fine.
- Twenty to fewer than 80 doses: Second-degree felony, punishable by two to ten years in prison and up to a $10,000 fine.
- Eighty to fewer than 4,000 doses: First-degree felony, punishable by five to 99 years in prison and up to a $10,000 fine.
- Four-thousand or more doses: Enhanced first-degree felony, punishable by 15 to 99 years in prison and up to a $250,000 fine.
Penalty Group 2 and 2-A
Penalties for distributing Penalty Group 2 and 2-A drugs, which covers hallucinogens and stimulants like cannabinoid derivates and synthetic cannabinoids, include:
- Less than one gram: State jail felony, punishable by 180 days to two years in jail and up to a $10,000 fine.
- One gram to less than four grams: Second-degree felony, punishable by two to ten years in prison and up to a $10,000 fine.
- Four grams to less than 400 grams: First-degree felony, punishable by five to 99 years in prison and up to a $10,000 fine.
- More than 400 grams: Enhanced first-degree felony, punishable by 10 to 99 years in prison and up to a $100,000 fine.
Penalty Group 3 and 4
Penalty Groups 3 and 4 include depressants like barbiturates and narcotics combined with other medications like Tylenol with Codeine and Vicodin. Penalties for distributing these drugs include:
- Less than 28 grams: State jail felony, punishable by 180 days to two years in jail and up to a $10,000 fine.
- Twenty-eight to less than 200 grams: Second-degree felony, punishable by two to ten years in prison and up to a $10,000 fine.
- Two hundred to less than 400 grams: First-degree felony, punishable by five to 99 years in prison and up to a $10,000 fine.
- More than 400 grams: Enhanced first-degree felony, punishable by ten to 99 years in prison and up to a $100,000 fine.
Distributing these drugs will also result in enhanced penalties if the crime involves a child or someone's injury or death.
Hire an Expert in Texas Criminal Defense
If you're facing charges for selling synthetic drugs in Texas, you need an expert in criminal defense by your side. Attorney Doug Murphy is Board Certified in both Criminal Defense Law and DWI Defense in Texas. He is one of only two attorneys in Texas with certifications in both specialties.
Thompson Reuters named Doug a Texas Super Lawyer in Texas Monthly in 2009 and every year from 2013 to 2020. Thompson Reuters also named him a Texas Rising Star and a Texas Super Lawyer more than a dozen times.
Moreover, Doug has more than twenty years of experience defending Texans in complex criminal cases, including drug possession and distribution charges. He can help you too. Contact the Doug Murphy Law Firm today online or at 713-229-8333.
