San Antonio Drug Possession Lawyer

A drug possession charge in Texas can affect a person’s freedom, employment, housing, and future, and the consequences turn on details that are easy to get wrong without careful review. Forrest Good is a criminal defense attorney in San Antonio, and Forrest Good PLLC represents people charged with drug possession in Bexar County and the surrounding area.

What a drug possession charge means in Texas

Most drug possession cases in Texas are governed by the Texas Controlled Substances Act, found in Chapter 481 of the Texas Health and Safety Code.1 The Act sorts controlled substances into categories called penalty groups, and it sets out separate possession offenses for each group.2

To convict a person of possession, the State must prove that the person knowingly or intentionally possessed the substance, meaning the person exercised actual care, custody, control, or management over it and knew the matter possessed was contraband.3 A person who obtained the substance directly from, or under a valid prescription or order of, a practitioner acting in the course of professional practice is excepted from these offenses.3 The word “possession” does not require ownership, and more than one person can be found to possess the same item, which is why proximity alone is often a contested point in these cases.3

A drug possession accusation is only an allegation. A person charged with a drug offense is presumed innocent, and the State carries the burden of proving every element beyond a reasonable doubt.

How Texas classifies drug possession and the penalties

The level of a possession offense depends on two things: which penalty group the substance falls in, and the amount possessed measured by aggregate weight, including any adulterants or dilutants.4 The phrase “adulterants or dilutants” matters because the total weight that counts can include substances mixed in with the drug, not only the pure controlled substance.4

The penalty groups

Penalty Group 1 includes substances such as heroin, cocaine, methamphetamine, and many opioids.5 Penalty Group 1-A covers lysergic acid diethylamide, known as LSD, which is measured by abuse units rather than by weight.6 Penalty Group 2 includes substances such as MDMA, certain hallucinogens, and amphetamine.7 Penalty Groups 3 and 4 include many depressants, stimulants, and certain compounds containing limited amounts of narcotics, and marihuana is handled under its own separate statute.2

Punishment ranges by group and amount

The table below summarizes the possession offense levels set out in the Texas Health and Safety Code. The general punishment ranges for each offense level come from Chapter 12 of the Texas Penal Code.8 Actual exposure in a given case depends on the specific facts, the person’s criminal history, and other factors, so the ranges below describe the statutory framework rather than the outcome of any particular case.

Substance and amount (aggregate weight, including adulterants or dilutants) Offense level General punishment range
Penalty Group 1: less than 1 gram9 State jail felony 180 days to 2 years in a state jail and a fine up to $10,0008
Penalty Group 1: 1 gram or more but less than 4 grams9 Third degree felony 2 to 10 years in prison and a fine up to $10,0008
Penalty Group 1: 4 grams or more but less than 200 grams9 Second degree felony 2 to 20 years in prison and a fine up to $10,0008
Penalty Group 1: 200 grams or more but less than 400 grams9 First degree felony 5 to 99 years or life in prison and a fine up to $10,0008
Penalty Group 1: 400 grams or more9 First degree felony, enhanced 10 to 99 years or life in prison and a fine up to $100,0009
Penalty Group 1-A: fewer than 20 abuse units, ranging up to 8,000 or more units6 State jail felony up to first degree felony, enhanced From 180 days in a state jail up to life or 15 to 99 years and a fine up to $250,000 at the highest tier6
Penalty Group 2: less than 1 gram10 State jail felony 180 days to 2 years in a state jail and a fine up to $10,0008
Penalty Group 2: 1 gram or more but less than 4 grams10 Third degree felony 2 to 10 years in prison and a fine up to $10,0008
Penalty Group 2: 4 grams or more but less than 400 grams10 Second degree felony 2 to 20 years in prison and a fine up to $10,0008
Penalty Group 2: 400 grams or more10 First degree felony, enhanced 5 to 99 years or life in prison and a fine up to $50,00010
Penalty Group 3: less than 28 grams11 Class A misdemeanor Up to 1 year in county jail and a fine up to $4,0008
Penalty Group 3: 28 grams or more but less than 200 grams11 Third degree felony 2 to 10 years in prison and a fine up to $10,0008
Penalty Group 4: less than 28 grams12 Class B misdemeanor Up to 180 days in county jail and a fine up to $2,0008
Marihuana: 2 ounces or less13 Class B misdemeanor Up to 180 days in county jail and a fine up to $2,0008
Marihuana: more than 2 ounces but 4 ounces or less13 Class A misdemeanor Up to 1 year in county jail and a fine up to $4,0008
Marihuana: more than 4 ounces but 5 pounds or less13 State jail felony 180 days to 2 years in a state jail and a fine up to $10,0008
Marihuana: more than 5 pounds but 50 pounds or less13 Third degree felony 2 to 10 years in prison and a fine up to $10,0008

Penalty Groups 3 and 4 carry higher felony levels at greater weights as well, and the marihuana statute continues up through a second degree felony and an enhanced first degree range for the largest quantities.1113 A separate provision also addresses possession of substances that are not listed in any penalty group.2

Possible federal exposure

Some drug cases are charged under federal law rather than, or in addition to, state law. Simple possession of a controlled substance is a federal offense under Title 21 of the United States Code, and a first offense generally carries up to one year of imprisonment and a fine, with increased penalties for repeat offenses.14 Whether a case proceeds in state or federal court depends on the facts and on charging decisions made by the government.

How drug possession cases move through Bexar County courts

In Bexar County, the court that hears a drug possession case depends on whether the charge is a misdemeanor or a felony. Misdemeanor possession cases are handled by the County Courts at Law, also called the County Criminal Courts, which adjudicate misdemeanor cases where punishment may reach a fine up to $4,000 or up to one year in jail.15 Felony possession cases are heard in the Criminal District Courts, of which Bexar County has ten, each with original jurisdiction over felony matters.16 Many of these courts sit at the Cadena-Reeves Justice Center at 300 Dolorosa Street in downtown San Antonio.15

The general steps

A possession case usually begins with an arrest or a citation. After an arrest, a person is taken before a magistrate, who informs the person of the accusation and sets the conditions of release, including bond.17 The case is then reviewed for a formal charge. Misdemeanors proceed on an information, and felonies generally proceed by indictment from a grand jury.17

After charging, the case enters a pretrial phase that can include arraignment, the exchange of evidence, and pretrial hearings on legal issues such as motions to suppress. Texas law requires the State to disclose certain evidence to the defense, including material that is favorable to the person accused.18 Many cases are resolved before trial, but a person charged with a drug offense has the right to a trial by jury.17 Bexar County also operates specialized dockets, including a felony drug court, that may be available in some cases.16

Defense considerations in a drug possession case

Every case is different, and the considerations below are general points of law rather than predictions about any outcome. Forrest Good reviews the specific facts and the evidence in each matter.

Whether the State can prove knowing possession

Because the State must prove that a person knowingly possessed the substance and knew it was contraband, cases often turn on the link between the person and the drugs.3 When contraband is found in a place that several people could access, such as a shared vehicle or residence, the question of who actually exercised control becomes central.3

Search and seizure under the Fourth Amendment

The Fourth Amendment to the United States Constitution protects against unreasonable searches and seizures.19 When evidence is obtained through a stop, search, or seizure that violates the Constitution, a person may move to suppress that evidence, and Texas has a statutory exclusionary rule that can bar illegally obtained evidence from trial.18 How the police came to find the substance is therefore a frequent area of review.

The identity and quantity of the substance

The State must establish that the seized material actually is the controlled substance alleged, and the offense level depends on the aggregate weight.4 That generally requires laboratory analysis. The handling of the evidence, the chain of custody, and the reliability of the testing are all subjects a defense can examine.

Collateral consequences of a drug conviction

The penalties listed in the statutes are not the only consequences of a drug conviction. A conviction can carry effects that reach well beyond the courtroom.

Texas law allows a court to suspend the driver license of a person convicted of certain drug offenses.20 A drug conviction can also affect eligibility for federal student aid, certain housing, and some professional licenses, and it can create lasting difficulty in employment and in immigration matters for people who are not United States citizens. A felony conviction additionally affects civil rights such as the right to possess a firearm. Because these consequences vary by person and by offense, they are worth discussing carefully in any specific case.

What to do if you are charged with drug possession in San Antonio

A person who has been arrested or charged with drug possession has the right to remain silent and the right to a lawyer.19 It is generally wise to avoid discussing the facts of the case with anyone other than an attorney, because statements made to police or to others can be used as evidence.

Keeping records is also useful. That includes any paperwork received at the time of arrest or release, the bond conditions, and the dates of any court settings. Missing a court date can lead to additional consequences, so calendaring each setting matters.

Forrest Good PLLC represents people charged with drug possession in San Antonio and Bexar County. Forrest Good can review the facts of a case, explain the charge and the court process, and discuss the options available. The firm can be reached through the contact information on this website.

Frequently asked questions

Is a small amount of a drug still a felony in Texas?

It can be. For substances in Penalty Group 1, possession of less than one gram, measured by aggregate weight including adulterants or dilutants, is a state jail felony. For Penalty Group 2, less than one gram is also a state jail felony. Possession of substances in Penalty Groups 3 and 4 at lower weights is charged as a misdemeanor, and possession of small amounts of marihuana is a misdemeanor.

What is the difference between a state jail felony and a regular felony?

A state jail felony is the lowest level of felony in Texas. It is generally punishable by 180 days to two years in a state jail facility and a fine up to $10,000, while third, second, and first degree felonies carry longer prison terms in the Texas Department of Criminal Justice.

Will a drug charge show up on my record?

An arrest and a charge create records. Whether a case results in a conviction depends on how the case is resolved, and a person is presumed innocent unless and until the State proves the charge. Texas law provides procedures, such as expunction and orders of nondisclosure, that may apply to some records depending on the outcome and the circumstances. Whether any of these apply is specific to each case.

Can the marijuana in my case be hemp instead?

Texas law distinguishes marihuana from hemp based on the concentration of delta-9 tetrahydrocannabinol. Because that distinction depends on testing, the identity and the testing of the substance can be relevant in a marihuana case. This is a fact-specific question that depends on the evidence.

Do drug possession cases always go to trial?

No. Many cases are resolved before trial through various means. A person charged with a drug offense nonetheless has the right to a trial by jury, and whether a case goes to trial depends on the facts and on the decisions made in the case.

Does Forrest Good PLLC handle felony drug cases in Bexar County?

Yes. Forrest Good is a criminal defense attorney in San Antonio, and Forrest Good PLLC handles both misdemeanor and felony drug possession matters in Bexar County. Felony cases are heard in the Criminal District Courts, and misdemeanor cases are heard in the County Courts at Law.

Other practice areas

Learn more

References

  1. Texas Health and Safety Code, Chapter 481 (Texas Controlled Substances Act), Texas Constitution and Statutes. https://statutes.capitol.texas.gov/Docs/HS/htm/HS.481.htm
  2. Texas Health and Safety Code, Subchapter D, Offenses and Penalties (possession offenses by penalty group, including Secs. 481.115 through 481.118, 481.121, and related provisions), Texas Constitution and Statutes. https://statutes.capitol.texas.gov/Docs/HS/htm/HS.481.htm
  3. Texas Health and Safety Code Secs. 481.002 and 481.115(a) (definition of possession and the knowing or intentional element), Texas Statutes. http://tx.elaws.us/law/hs_title6_chapter481_sec.481.115
  4. Texas Health and Safety Code Sec. 481.115 (offense level determined by aggregate weight, including adulterants or dilutants), Texas Statutes. http://tx.elaws.us/law/hs_title6_chapter481_sec.481.115
  5. Texas Health and Safety Code Sec. 481.102 (Penalty Group 1), Texas Statutes. http://tx.elaws.us/law/hs_title6_chapter481_sec.481.102
  6. Texas Health and Safety Code Sec. 481.1151 (Possession of Substance in Penalty Group 1-A, abuse-unit tiers), Texas Statutes. http://tx.elaws.us/law/hs_title6_chapter481_sec.481.1151
  7. Texas Health and Safety Code Sec. 481.103 (Penalty Group 2), Texas Statutes. http://tx.elaws.us/law/hs_title6_chapter481_sec.481.103
  8. Texas Penal Code, Chapter 12 (Punishments), Secs. 12.21, 12.22, 12.32, 12.33, 12.34, and 12.35, Texas Constitution and Statutes. https://statutes.capitol.texas.gov/Docs/PE/htm/PE.12.htm
  9. Texas Health and Safety Code Sec. 481.115 (Possession of Substance in Penalty Group 1 or 1-B, weight tiers and enhanced first degree range), Texas Statutes. http://tx.elaws.us/law/hs_title6_chapter481_sec.481.115
  10. Texas Health and Safety Code Sec. 481.116 (Possession of Substance in Penalty Group 2, weight tiers and enhanced first degree range), Texas Statutes. http://tx.elaws.us/law/hs_title6_chapter481_sec.481.116
  11. Texas Health and Safety Code Sec. 481.117 (Possession of Substance in Penalty Group 3, Class A misdemeanor base tier and felony tiers), Texas Statutes. http://tx.elaws.us/law/hs_title6_chapter481_sec.481.117
  12. Texas Health and Safety Code Sec. 481.118 (Possession of Substance in Penalty Group 4, Class B misdemeanor base tier and felony tiers), Texas Statutes. http://tx.elaws.us/law/hs_title6_chapter481_sec.481.118
  13. Texas Health and Safety Code Sec. 481.121 (Possession of Marihuana, ounce and pound tiers), Texas Statutes. http://tx.elaws.us/law/hs_title6_chapter481_sec.481.121
  14. 21 U.S.C. Sec. 844 (Penalties for simple possession), Office of the Law Revision Counsel, United States Code. https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title21-section844&edition=prelim
  15. County Courts at Law and criminal county court jurisdiction, Bexar County, Texas (Official Website). https://www.bexar.org/3431/Criminal-County-Courts
  16. Criminal District Courts, Bexar County, Texas (Official Website). https://www.bexar.org/1902/Criminal-District-Courts
  17. Texas Code of Criminal Procedure (magistrate duties, charging by information and indictment, and trial procedure), Texas Constitution and Statutes. https://statutes.capitol.texas.gov/Docs/CR/htm/CR.15.htm
  18. Texas Code of Criminal Procedure Art. 39.14 (discovery and disclosure of evidence) and Art. 38.23 (exclusion of illegally obtained evidence), Texas Constitution and Statutes. https://statutes.capitol.texas.gov/Docs/CR/htm/CR.39.htm
  19. United States Constitution, Fourth, Fifth, and Sixth Amendments, National Archives. https://www.archives.gov/founding-docs/bill-of-rights-transcript
  20. Texas Health and Safety Code Sec. 481.110 and Texas Transportation Code provisions on driver license suspension following certain drug convictions, Texas Constitution and Statutes. https://statutes.capitol.texas.gov/Docs/HS/htm/HS.481.htm