Schedule a free consultation


“Doug & Chris are top notch. Both are extremely competent, family oriented and deliver results.”-D.P.

Defending Against Controlled Substance Charges in Texas

Navigating Diversion and Fraud Offenses Related to Controlled Substances

Controlled substances in Texas are governed by the Controlled Substance Act. Not all controlled substances in the Act are illegal; many serve medical purposes and are lawful when used appropriately. The problem arises when legal controlled substances are not used within the confines of the law. Two specific offenses of unlawful use of controlled substances are described under the Controlled Substance Act: (1) diversion; and (2) fraud.

If you or someone you know has been charged with diversion of a controlled substance or distribution, possession, or use of a controlled substance by fraud, then the charge should be taken very seriously. An experienced criminal defense lawyer is in the best position to help you. Doug Murphy—a Board Certified criminal defense lawyer with a proven history of trial experience—has the insight, the legal understanding, and the resources to comprehensively represent your case and obtain the results you desire

Contact Doug Murphy today to schedule an appointment to discuss the specifics of your case. And in the meantime, to address some of your immediate concerns, review the following information on diversion and fraud as they pertain to controlled substances in Houston, Texas.

Understanding Diversion of a Controlled Substance in Texas

Medical professionals can come in contact with the law when mistakes are made. For example, a nurse may have provided a wrong dosage or may have entered information in error on the patient's chart, or a patient may have lied to a doctor, and the doctor prescribed medication in accordance with the lie. If convicted of diversion, serious penalties could follow.

When these things happen, and when they get noticed, law enforcement could conclude that you are diverting or unlawfully using a controlled substance for either personal use or for someone else's use. As someone in the medical profession, you need to be aware of diversion laws and how they could impact you if suspected of the same.

Texas Prescription Drug Diversion Law

Under Texas Penal Code §481.1285, a registrant, dispenser, or person not required to register for purposes of the Controlled Substance Act commits diversion when that person knowingly

(1) converts to the person's own use or benefit a controlled substance to which the person has access by virtue of the person's profession or employment; or

(2) diverts to the unlawful use or benefit of another person a controlled substance to which the person has access by virtue of the person's profession or employment.

Under this law, medical professionals like doctors, nurses, paramedics, and pharmacists have heightened responsibility when it comes to the distribution of prescription medication. If they fail to uphold this responsibility, they could find themselves in trouble with the law.

Penalties for Diversion of a Controlled Substance

A charge of diversion of a controlled substance is a state jail felony in the State of Texas if the diversion was for personal use. A state jail felony could mean 180 days to two years in state jail and a fine not to exceed $10,000.

The conviction becomes a third-degree felony if the diversion for unlawful purposes benefited someone else. A third-degree felony could mean two to ten years in state prison and a fine not to exceed $10,000.

In addition to jail and/or fines, a convicted medical professional could lose his or her medical license or nursing license. The suspension or revocation of a professional license can mean the end of a career, and a criminal record could mean difficulty finding employment.

Understanding the Fraudulent Distribution, Possession, or Use of a Controlled Substance in Texas

Prescription drug fraud is serious and can happen when prescription drug users/abusers obtain prescription drugs unlawfully. Unlawful use of prescription drugs or unlawful attainment of prescription drugs can happen in many different ways.

  • A person could be accused of prescription drug fraud if the alleged offender purportedly forged prescriptions, which can happen when a patient, medical staff, or other personnel steals a physician's prescription pad or notebook or creates a fake prescription by using various forms of technology.
  • A person could be accused of prescription drug fraud if the alleged offender purportedly altered a legitimate prescription by increasing the number of refills, the strength of the prescription, or adding drugs.
  • A person could be accused of prescription drug fraud if the alleged offender purportedly shops for different doctors and lies to each of them that he or she is already being treated by another physician and already has prescription medication.

These are only a few ways that a person can be charged with prescription drug fraud in Texas. These acts can be committed by any person, from a medical professional, to a patient addicted to the drugs, to a person wanting to unlawfully make money selling the drugs. The unfortunate truth is: most who commit these kinds of fraud crimes are persons who administered, prescribed, or were prescribed these drugs for a legitimate, medical purpose in the first place.

Texas Prescription Drug-Related Fraud Laws

Fraud can be used to unlawfully obtain or distribute controlled substances. Texas Penal Code § 481.129(a)-(c) provides that a person commits fraud if he or she knowingly:

  • Uses a fictitious, revoked, or suspended registration number to manufacture, distribute, or prescribe the drug;
  • Issues a forged prescription;
  • Uses someone else's prescription for a Schedule II drug;
  • Possesses the prescription drug by misrepresentation, fraud, forgery, or deception;
  • Makes, sells, or possesses counterfeit substances;
  • Produces false information to obtain or prescribe the prescription drug; or
  • Provides a prescription or a prescription form for any non-medical purpose in the course of your professional practice.

The above is only a summary of what actions and circumstances constitute prescription drug fraud per the Controlled Substance Act.

Classification & Penalties for Fraud

The classification of an alleged fraud offense is determined by which of the above acts allegedly took place and the schedule of drugs or prescriptions involved in that act. The penalties are dependent on the classification and overall circumstances.

Fraud Offense

Subject of Offense


Possible Penalties

§ 481.129(a)
§ 481.129(a-1)

Schedules I or II drugs

2nd Degree Felony

Prison: 2-20 years
Fine: up to $10,000

§ 481.129(a)
§ 481.129(a-1)

Schedules III or IV drugs

3rd Degree Felony

Prison: 2-10 years
Fine: up to $10,000

§ 481.129(a)
§ 481.129(a-1)

Schedule V drugs

Class A Misdemeanor

Prison: up to 1 year
Fine: up to $4,000

§ 481.129(b)

Counterfeit substance

Class A Misdemeanor

Prison: up to 1 year
Fine: up to $4,000

§ 481.129(c)(1)

Prescription form or prescription
for drugs under Schedule II

2nd Degree Felony

Prison: 2-20 years
Fine: up to $10,000

§ 481.129(c)(1)

Prescription for drugs under
Schedules III, IV, V

3rd Degree Felony

Prison: 2-10 years
Fine: up to $10,000

§ 481.129(c)(2)

Prescription form or prescription for
drugs under Schedule II or III

State Jail Felony

Prison: 180 days - 2 years
Fine: up to $10,000

§ 481.129(c)(2)

Prescription for drugs under
Schedules IV or V

Class B Misdemeanor

Prison: 180 days
Fine: up to $2,000

Common Controlled Substances Subject to Diversion & Fraud

The most common controlled substances fraudulently obtained or diverted for unlawful purposes are medicines used to treat chronic pain, pain from an injury, sleeping disorders, anxiety, muscle relaxers, and attention deficit disorder (ADD) or attention deficit hyperactivity disorder (ADHD).

  • Pain relievers include prescriptions for Hydrocodone products (e.g., Vicodin and Lortab), Oxycodone (e.g., Oxycontin, Percocet, Percodan, and Tylox), Soma, and Morphine.
  • Anxiety, sleeping disorders, and muscle relaxers are often treated with Xanax, Klonopin, Ativan, and Valium.
  • ADD and ADHD are often treated with Ritalin, Adderall, Dextroamphetamine, and other amphetamines.

All of these controlled substances have the capacity to be highly addictive. They are also controlled substances that are commonly administered and prescribed daily in Texas. Likewise, it is often doctors, pharmacists, nurses, and other medical personnel who are charged with prescription drug diversion or fraud because they are the ones with access to these drugs either directly or through prescription drug forms.

If you are in the medical field, the stakes are high if you are convicted of one of the crimes. To be charged with diversion or fraud related to these controlled substances is a serious offense that requires a strategic, comprehensive defense. Whether you are a doctor or a patient, you can't go to court and say you didn't know that your actions were illegal since the drug itself is legal for legal purposes. There are, however, possible defenses that could be employed in combination with an aggressive defense strategy and could help you defeat these charges.

Defenses to Diversion or Fraud Related to Controlled Substances

You need to fight any charge against you for prescription drug fraud or diversion of a controlled substance. With an experienced, strategic, Board Certified criminal defense lawyer, you stand a chance. Doug Murphy will protect your rights and help you protect your professional license—if you have one and if it is threatened due to the charge(s) against you.

Doug Murphy will investigate the case to understand the circumstances and facts as provided by you and law enforcement. Doug Murphy will inquire into the actions of law enforcement to determine if abuse of authority occurred. If a constitutional violation is found, Doug Murphy will act on it appropriately by moving the court to either (1) suppress any evidence flowing from that violation; or (2) dismiss the case altogether.

In these kinds of cases, the alleged offender is either completely innocent of the charges or an otherwise law-abiding citizen who found him or herself caught up in the moment without intending any harm. And therein lies the key to many of these cases: the element of intent. The alleged offender must have knowingly and intentionally committed these crimes, and Doug Murphy will use the absence of this element to fight and weaken the State's case against you.

In other words, Doug Murphy does not settle cases (unless it is indeed in the best interests of the client) because settling via a plea deal still leaves the suspected person with a criminal record, which could impact their professional career, among many other elements of their lives. Rather, Doug Murphy anticipates trial, and at trial, Doug Murphy holds the judge and jury accountable to the presumption that you are innocent until proven beyond a reasonable doubt that you are guilty.

Contact Our Houston, TX Drug Diversion Attorney

If you are a medical professional, and you have been charged with diverting or fraudulently obtaining or using controlled substances, your professional license and career are at risk. Doug Murphy, a Board Certified criminal defense lawyer, has two decades of criminal defense experience. He is committed, and he has case results and client testimonials that attest to the same. He has the resources, and he has two decades of experience building those resources. And he is well respected by the legal community, proof of which is in the number of accolades he possesses and the number of speaking engagement invitations he receives.

Contact Doug Murphy today either online or at 713-229-8333 to schedule a free consultation.

Back to Top