It is commonly accepted that Texas has some of the strictest laws and severe penalties for drug possession crimes. It's no surprise, then, that the laws related to possession of a controlled substance in Texas are complicated. In fact, Texas criminal defense attorneys regularly answer more questions about possession crimes than almost any other type of criminal charge.
With that in mind, we answer some of the most frequently asked questions regarding possession of controlled substances in Texas. But these questions only scratch the surface; to really understand these legal issues you will need to speak with a Houston drug possession lawyer. Doug Murphy is one of Houston's top criminal defense attorneys. To get help understanding the charges filed against you, contact the Doug Murphy Law Firm, P.C. to set up your free consultation.
Texas Drug Possession FAQ
What does it mean to “possess” a drug in Texas?
According to the Texas Penal Code Section 1.07(39), possession is the actual care, custody, control, or management of a controlled substance. This definition is intentionally broad, with the purpose to apply beyond cases where a defendant is arrested while in close proximity to the controlled substance. While care and custody imply proximity, it is clear from the addition of control or management that proximity to the drug is not required.
An example of controlling a drug would be to have it locked in the trunk of your car where you are the only person to have access to it. On the other hand, management can mean that you instruct others to take custody or care for the controlled substance.
Is it still illegal to possess marijuana in Texas?
Yes. Despite neighboring states like Oklahoma and Arkansas passing voter-driven marijuana reforms, Texas continues to outlaw the possession of marijuana for medical or recreational purposes.
Is it illegal to own any part of a marijuana plant?
Yes. Texas law bars the possession of any part of a Cannabis Sativa plant. That can include living or dead plants. It can also include dried leaves, shredded buds, or even seeds.
Will I lose my job if I am convicted of a drug crime?
There is no guarantee that a drug conviction won't affect your employment situation. For many employers, a conviction for possession of a controlled substance is grounds for immediate termination. What's more, you may find it difficult to obtain new employment with a conviction on your record.
This day and age, most employers run background checks on new hires. A conviction for a drug crime may be enough in many cases to cost you the job. Luckily, drug possession cases can be won in many circumstances. If you have been charged with a drug crime in the Houston area, attorney Doug Murphy can help you craft a defense that gives you the best chance for a positive outcome.
Can I be expelled from college for a drug crime conviction?
Every school is different. There are many places of higher learning that will allow students with a criminal record to enroll. Unfortunately, there's never a guarantee. Most universities have a code of conduct, and it's possible that a conviction for a drug crime could lead to suspension or expulsion. If you aren't in school yet, your application could also be denied outright due to your criminal record. Educational opportunities are another reason why fighting your conviction may be your best option.
Can I be denied an apartment due to a drug crime conviction?
Yes. Much like with employment opportunities, a conviction for a Texas drug crime could ultimately cost you housing opportunities. Prospective landlords are entitled to run a criminal background check on potential renters, and it is their prerogative whether or not to rent to anyone with a criminal conviction on their record.
What are “Drug Penalty Groups?”
The Texas Controlled Substance Act categorizes all controlled substances into six different “drug penalty groups.” The only exception is marijuana, which is treated differently than other controlled substances. Each penalty group carries its own separate penalty for a possession conviction; hence the name. The list below includes each drug in a penalty group. The list begins with the drugs that carry the heaviest penalties for possessing.
Penalty Group 1
- Oxycodone & Hydrocodone (over 300 mg)
- Raw Opium
- Opium Extracts
Penalty Group 1a
- LSD (Lysergic Acid Diethylamide)
- Every construable variant or form of LSD
Penalty Group 2
- PCP (Phencyclidine)
Penalty Group 2a
- Cannabinol Derivatives
Penalty Group 3
- Hydrocodone (less than 300 mg)
Penalty Group 4
- Buprenorphine (an opioid)
What Penalty Group carries the toughest punishment?
Of the six penalty groups, drug penalty group 1 carries the toughest punishment. If you are arrested under suspicion of possessing any substance in penalty group 1, you will be facing felony charges. The amount of legal jeopardy you are in depends on the amount of the controlled substance you are alleged to have possessed. It's no surprise that possessing larger quantities of a drug will lead to harsher penalties. The penalties for drugs in penalty group 1 are:
- Less than 1 gram – 180 days to 2 years in prison, and a maximum fine of $10,000
- More than 1 gram but less than 4 grams – 2 to 10 years in prison, and a maximum fine of $10,000
- More than 4 grams but less than 200 grams – between 2 and 20 years in prison, and a maximum fine of $10,000.
- More than 200 grams but less than 400 grams – between 5 and 99 years in prison, and a maximum fine of $100,000.
- 400 grams or more – between 10 and 99 years prison, and a maximum fine of $100,000.
Can a Texas drug crimes conviction cost me my driver's license?
Yes. Any conviction for a drug crime under the Texas Controlled Substances Act can lead to driver's license suspension for up to six months. This includes a conviction for the possession of marijuana. Suspension is at the judge's discretion and is not mandatory.
Can a police officer search my car if he thinks I am in possession of a controlled substance?
Whether or not an officer can search your car without your permission depends on the circumstances of the traffic stop. An officer cannot simply search any car they want for no reason. If the officer illegally searches your vehicle, any evidence collected may be excluded at your trial. There are four circumstances in which the police may search your vehicle:
- You consent to the search;
- You have been placed under arrest;
- Police believe that a search is necessary to thwart danger or a threat; or
- There is probable cause to support a warrantless search.
I refused to let the officer search my car. The officer says he has probable cause and is going to search it anyway. Is this legal?
Maybe. Under the rights granted to you by the Fourth Amendment to the Constitution, you are protected from unreasonable searches and seizures by the government. However, if the police can meet a certain legal standard, they can search your vehicle even without your permission or a warrant. If the police have “probable cause” to believe that you have committed a crime and that there is evidence of that crime in your vehicle, they can legally search your car.
Some examples of probable cause include:
- Pill bottles or other controlled substances are visible from outside your car.
- The officer smells marijuana smoke coming from your vehicle.
- Drug paraphernalia is visible in or around one of the occupants of your car.
- You admit that you have illegal drugs in the vehicle.
If your car was subject to a warrantless search, your attorney may determine that the officers lacked probable cause to search the vehicle. If a judge agrees, your attorney may have the evidence recovered in the search excluded from your trial. This can include physical evidence recovered from your car and even statements you made after your arrest.
The prosecutor says they have a lot of evidence against me. Should I just accept their plea offer?
Almost never. The only person that benefits from you pleading guilty without consulting an attorney is the prosecutor. While it is true the prosecutor has the weight of the State of Texas behind him or her, the reality is that in many cases you have a potentially viable defense to the crime you have been charged with.
What's more, only an experienced attorney can put a plea bargain into context for you. It's possible the offer you've received is worse than most plea bargains or even potentially harsher than if you were to be found guilty at trial. You should never agree to any plea agreement without speaking with an attorney first.
Are there valid exemptions in drug possession cases?
There are a few exemptions that apply to Texas drug possession laws. In these limited cases, the possession of controlled substances that would otherwise lead to criminal charges is exempt. These exemptions are very narrow and include:
- Peyote use in the Native American Church;
- Denatured sodium pentobarbital used by a Humane Society or animal control agency;
- Certain forms of cannabinoids and drug paraphernalia for therapeutic research purposes; and
- Anabolic steroids intended for livestock.
What are common defenses in drug possession cases?
Drug possession cases carry serious penalties but only if you are convicted. There are a number of valid defenses in drug possession cases that lead to a jury ruling in your favor. Some of the most common defenses include:
- Lack of Knowledge of Possession – To be convicted, you have to knowingly be in possession of a controlled substance. For example, if you are unaware that the bag you are carrying has a controlled substance in it, you have not committed a crime.
- Exempt From Possession Law – As we discussed above, there are several circumstances that would be a crime if not for certain exemptions. If one of those exemptions apply in your case, you will have a valid defense.
- Valid Prescription – Prescription drugs are a controlled substance and possessing them unlawfully can have serious legal consequences. But these medications have intended medical uses that give doctors a reason to prescribe them. If you are arrested for possessing a prescription drug that was prescribed by your doctor, you haven't committed a crime.
- Constitutional Rights Violations – If the evidence collected against you was done in violation of your constitutional rights, you may have a valid defense in your case. If enough of the evidence against you is excluded, it's possible your attorney may have the entire case dismissed or thrown out.
What should I look for in a Houston drug crimes lawyer?
More likely than not, you will be drawn to a potential criminal defense attorney by a TV ad or an online search. However, there's so much more that goes into hiring the right defense attorney than that. You need to know you have an attorney with the skills to provide the best defense possible. The best way to do that is to seek out attorneys that are Board Certified experts in criminal law.
For an attorney to be considered an expert in criminal law, he or she must be accredited by the State of Texas. The accreditation process is long and difficult. Attorneys must meet certain milestones, like try enough cases in front of a jury. They must also focus most of their law practice on defending the accused. Finally, to achieve accreditation, an attorney must complete a difficult exam that tests their experience and practical knowledge. Always ensure your criminal defense attorney is a Board Certified expert.
Hiring the Best Houston Drug Crimes Lawyer
If you have been charged with a drug crime in Houston, attorney Doug Murphy is ready to help. Doug Murphy is a Board Certified expert in criminal law. A trial lawyer at heart, he prepares each of his cases as if they will ultimately go to trial. This approach ensures that you receive the best defense possible. To discuss your case with an expert, contact the Doug Murphy Law Firm, P.C. today.