Drug Crime FAQ

Texas Drug Crime FAQ

Experienced Austin Drug Crime Lawyers in Your Corner

Do not delay talking to an experienced criminal defense lawyer at Cofer & Connelly if you are charged with a drug crime in Austin or elsewhere in Texas. The sooner we get started, the better we can assess your particular situation and prepare the most effective defense for you.

Call (512) 991-0576or submit our onlineform for your free consultation.

Texas prosecutes drug crimes aggressively. If you are facing drug crime charges in Texas, you must realize that the case against you can have life-changing consequences. The penalties for a Texas drug crime conviction can include a lengthy prison sentence and significant monetary fines. Additional consequences of a conviction might include damage to your career, your relationship with your family, and your reputation in the community.

It is critical that you do all you can to get the best result from a challenging situation. Professional legal guidance can make a big difference in how your case turns out. This guide to drug crimes in Texas explains the laws in more detail and contains important information about potential defenses.

Information Center

  1. Drug Crimes In The State Of Texas
  2. Drug Crime Words And Phrases
  3. Drug Schedules
  4. Federal And Texas Drug Crime Law
  5. Drug Enforcement Categories Of The Federal Drug Enforcement Agency
  6. Drug Crime Punishments And Sentences
  7. Drug Penalty Groups In Texas Drug Crimes
  8. Drug Crime Investigations In Texas
  9. Criminal Process Of Drug Crime Charges
  10. Specific Texas Drug Crimes
  11. Drug Crime Defenses
  12. Specific Texas Controlled Substances
  13. Get Legal Support For Texas Drug Crime Charges

Crimes In The State Of Texas

Texas has a long history of harsh drug crime prosecutions. In 2020, Texas law enforcement made 74.778 arrests just for drug possession. Detailed and extensive drug crime laws in Texas, as well as separate federal drug laws, cover many different types of drug crimes and a host of unique situations, all of which can be charged and prosecuted based on the specific facts of individual cases. The type of illegal drug, how much of the drug is at issue, and the kind of activity involved all factor into how serious the charges are. Many drug crimes in Texas are charged as felonies rather than misdemeanors. Felonies typically carry more harsh consequences than misdemeanors.

Drug Crime Words and Phrases

Texas drug crime laws use certain specific words and phrases in particular ways, as defined in the text of the laws. If you are facing drug crime charges, it is helpful to know some key terms that will be central to your case and how the interpretation of those terms will have a significant impact on the results that can come from the charges.

Controlled Substance

A drug, substance, mixture, or additive that is among the substances listed in Controlled Substances Schedules I through V or Penalty Group 1, 1-A, 1-B, 2, 2-A, 3, or 4 of Texas drug laws.

Counterfeit Substance

A counterfeit substance is a drug produced to resemble a legally available prescription or over-the-counter manufactured substance with similar labels and packaging. Counterfeit substances are a distinct category from simulated controlled substances, defined as inauthentic controlled substances that are created to resemble an actual controlled substance.


The act of transferring a controlled substance, a counterfeit substance, or drug paraphernalia to someone else is called delivery in Texas drug crime law. The legal meaning of the word includes offers to sell, even if the transaction is not completed.


A natural or chemical substance that is meant to cause an effect on the user’s body or brain is defined as a drug under the law, regardless of whether the substance has accepted medical uses.

Drug Paraphernalia

Objects, products, equipment, or materials that are meant to assist in the consumption, manufacture, planting, cultivating, compounding, producing, packaging, storing, containing, concealing, or delivery of a controlled substance are considered drug paraphernalia and can bring criminal charges on their own, even absent the presence of any drugs.

Human Consumption

The definition of human consumption in Texas drug law involves the introduction of a substance into the human body through injection, inhalation, ingestion, or application onto the body.


A person or group who produces or creates a controlled substance is a manufacturer under the law.

Medical Purpose

As used in drug schedules that categorize illicit controlled substances, the term medical purpose means a recognized use of a controlled substance for relieving or curing a mental or physical disease.


The legal definition of production in Texas law includes the processes of manufacturing, growing, planting, cultivating, or harvesting a controlled substance.


The legal definition of trafficking is the manufacture, delivery, or possession of certain amounts of specified controlled substances with the intent to deliver or sell. The offense of trafficking can be charged even with just possession of a significant quantity of certain drugs.

As defined in Texas drug laws, these and other critical words and phrases are central to how drug crimes are charged and prosecuted in Texas courts. A prosecutor must ensure that evidence and facts submitted in the case will meet the strict definitions of the law to satisfy the burden of proof in a criminal case.

Drug Schedules

Texas law separates drugs into five groups, called schedules, that closely follow the federal Controlled Substances Act. These categories place drugs in groups according to the substance’s recognized value in medical use (or lack of medical use), its potential for addiction and abuse, and categories for types of drug effects, such as hallucinogen, stimulant, or depressant.

Penalties associated with drug crime charges are based on the type and schedule of the drug, as well as the amount at issue and the behavior of the accused in the case. The Texas Controlled Substance Act references the following list of illegal controlled substances, plus many more:

Schedule I

The definition of Schedule I drugs are substances that have been found to have no medical use and that are considered very addictive. Among others, substances on Schedule I include:

  • Mescaline
  • Heroin
  • LSD
  • Marijuana (often called marihuana in Texas laws)
  • Psychoactive mushrooms

Schedule II

Substances listed in Schedule II are considered to have some medical use but are also understood to have a substantial risk of addiction or abuse.

  • Barbiturates
  • Cocaine
  • Methamphetamine
  • Methadone
  • Morphine
  • Opium
  • Oxycontin
  • Percocet
  • PCP
  • Pure Codeine

Schedule III

Schedule III drugs are substances that have medical uses but are known to be subject to recreational abuse and have the potential to lead to addiction.

  • Anabolic Steroids
  • Codeine
  • Lorcet
  • Lortab
  • Ketamine
  • Marinol
  • Vicodin

Schedule IV

Generally prescribed for medical use, Schedule IV drugs are also considered to carry a risk of abuse.

  • Darvocet
  • Darvon
  • Valium
  • Xanax

Schedule V

Substances listed in Schedule V are considered the least dangerous substances but are still controlled substances that have some degree of potential for abuse. They include mixtures of medications that include:

  • Not more than 200 milligrams of codeine per 100 milliliters
  • Not more than 15 milligrams of opium per 29.5729 milliliters
  • Ezogabine
  • Pregabalin

Federal and Texas Drug Crime Law

Two groups of authorities enforce different drug crime laws. They can make arrests and prosecutions for drug offenses in Texas—the US Federal government and Texas state and local law enforcement. There are similarities in the systems that state and federal governments follow regarding categories and penalties for drug offenses. Under Texas and federal laws, it is a crime to produce, manufacture, possess, or sell controlled substances.

Federal laws and drug offense prosecutions tend to focus more on large-scale drug trafficking with international or interstate connections—criminal organizations like gangs and cartels that cross borders generally come under the scope of federal law enforcement. The US Drug Enforcement Agency—DEA—has stated its priorities as focusing on drug trafficking cartels from around the world, including from Asia, Central America, South America, and Mexico.

Texas drug enforcement officers are concerned with local or statewide drug manufacturing and distribution. Texas authorities also focus on apprehending individuals who have violated Texas drug crime laws. Law enforcement efforts from local cities and from county sheriffs, as well as statewide law agencies, focus their efforts on investigating and prosecuting drug users and sellers who distribute drugs into local neighborhoods and cities in Texas.

Drug Enforcement Categories of the Federal Drug Enforcement Agency

The DEA is the principal investigative agency that identifies, investigates, and makes arrests for violations of US federal drug crimes. Seven primary classifications of controlled substances come within federal law:

  1. Fentanyl and synthetic opioids: The past few decades have seen synthetically manufactured opioids leap to the top of causes of drug deaths, including overdoses, either on their own or combined with substances like heroin.
  2. Heroin: A powerfully addictive substance that is trafficked into and through Texas by drug organizations. The DEA classifies heroin as one of its primary enforcement targets.
  3. Prescription drugs of abuse: Medications that are legal when used according to a doctor’s prescription, these drugs are abused by individuals who range from patients who manipulate the system to get extra drugs to those who purchase the drugs from patients or other illicit sources. Counterfeit prescription drugs might mimic the look or contents of legally available medications and enter the drug market.
  4. Methamphetamines: Another highly addictive substance that is widely abused in modern society, methamphetamines can be cheaply manufactured and widely distributed, so they are classified among the DEA’s top priorities for drug interdiction efforts.
  5. Various psychoactive chemicals: Many new substances are synthetically made in laboratories that have access to the precursor chemicals, which can be combined to create a range of psychoactive drugs of abuse, so they have a place among the DEA’s enforcement priorities.
  6. Cocaine: A widely abused and very addictive drug that has some limited medical applications, cocaine is trafficked into and throughout Texas and the US from Mexico, South America, and elsewhere, making it a top priority of DEA attention and efforts.
  7. Marijuana: While recent changes in many state laws have decriminalized or legalized cannabis, federal and Texas laws continue to classify it as an illegal controlled substance.

Drug Crime Punishments and Sentences

Prosecutions by federal authorities for violations of drug crimes carry set sentences that are established by federal sentencing guidelines, called mandatory minimums. The goal of federal guidelines is to assure consistent treatment of drug crimes throughout the country, regardless of the locality in which the crimes occurred and the arrest and prosecution took place. Defendants facing federal drug crime charges are held to the same standards of penalties and punishments no matter where the crimes are charged. Many kinds of drug crimes are punished with mandatory minimum sentences that require federal judges throughout the country to follow established sentencing rules for certain offenses. Federal judges have little to no discretion in issuing sentences that are less than the set minimums, even despite compelling circumstances that might call for more nuanced justice in other courts.

Like the federal drug prosecution system, Texas law sets a range of minimum and maximum sentences allowed on conviction of drug crimes that are included in the Texas Controlled Substances act. Texas judges must assign a convicted drug criminal a sentence within the set range, between the maximum and minimum levels prescribed by the law. However, there is more flexibility in the Texas state laws of minimum and maximum sentencing ranges than allowed under federal law. A Texas judge is responsible for setting the sentence within the range allowed by the law and explaining the reasons behind the choice of sentence and the factors that went into the judge’s decision to arrive at that sentence.

Drug Penalty Groups in Texas Drug Crimes

Under Texas drug crime laws, there are six drug penalty groups, which are abbreviated as PG—PG1, PG1-A, PG2, PG2-A, PG3, and PG4. The category of PG applicable to your case is based on the conviction for which you were found guilty. The PG applied to your case will depend on the type and quantity of drugs at issue, as well as your behavior with it. A possession conviction will subject you to different PG than will charges for manufacture or delivery of the drug. Possession of a large quantity of drugs will place you in a more severe PG than having a small amount of the same substance. Other factors can be considered in the PG you may be placed in on conviction of a drug charge.

Penalty Group 1

The most heavily regulated and harshly punished Penalty Group is PG1. Drugs regulated within PG1 include opioids such as oxycodone, hydrocodone, codeine, and methamphetamines like ketamine, mescaline, and others. Possession of drugs within PG1 is charged as a felony. Conviction on charges of possession of small amounts can bring sentences from 180 days to 2 years in prison and a $10,000 fine, while more significant amounts can bring sentences between 15 and 99 years in prison and a fine of up to $100,000.

Penalty Group 1-A

The only drugs in Penalty Group 1-A are LSD and its derivatives, including any salt, isomer, or salts of isomers. Measurement of LSD is in “units” rather than weight, as with most other substances. Possession of a PG1-A substance is charged as a felony, and punishments are like those of PG1.

Penalty Group 2

Hallucinogenic drugs such as PCP, Ecstasy, and peyote fall within Penalty Group 2. Possession of PG2 substances is charged as a felony, and sentences are similar to PG1 and PG1-A. Small amounts (less than a gram) can bring 180 days to 2 years in state jail. Above 400 grams, possession can bring a prison sentence from 5 to 99 years, with a maximum fine of $50,000.

Penalty Group 2-A

Covered in Penalty Group 2-A are chemical compounds that replicate cannabinoid substances, known popularly as Spice or K2. Possession of small amounts of PG2-A substances is charged as a misdemeanor and can bring up to a year in county jail for small amounts and between 2 and 20 years in prison on a conviction of possession of more than 400 grams.

Penalty Group 3

Included in Penalty Group 3 are opiates and opioids not included in PG1. Such opioids include methylphenidate, benzodiazepines, anabolic steroids, and other prescription drugs with stimulant or depressant effects. Charged as misdemeanors for small amounts, a conviction of possession charges brings punishments similar to those of PG2-A. Above 28 grams, possession is considered a felony and carries penalties of up to 99 years in state prison for possession of above 400 grams of PG3 substances.

Penalty Group 4

Various prescription medications and the chemical compounds that they consist of are included in Penalty Group 4. Generally considered prescription drugs with great potential for abuse, possession of less than 28 grams of PG4 substances can bring Class B Misdemeanor charges. Penalties range from 180 days in county jail and fines up to $2,000. Like the other categories, possession of large amounts, especially above 400 grams, can bring harsh penalties of 5 to 99 years in prison and fines up to $50,000.

Marijuana Drug Crimes

Drug crimes related to marijuana do fall under any one of the six Penalty Groups in Texas law. Depending on the amount of marijuana at issue, penalties can range from a Class B misdemeanor (under a quarter of an ounce) or a Class A Misdemeanor (above a quarter of an ounce). While many other states have made substantial changes in marijuana laws, including decriminalization and legalization, Texas continues to punish marijuana possession strictly, up to a potential of 10 to 99 years in state prison for amounts above 2,000 pounds of marijuana, along with fines up to $100,000.

Drug Crime Investigations in Texas

There are many ways to be caught with illegal drugs in Texas. Some drug crime arrests happen after a thorough investigation, while others happen after a traffic stop or what seems like a simple interaction with local police at the neighborhood park. Some drug charges stem from complex investigations that can involve law enforcement from several different jurisdictions involving local, state, or federal officers. On the other hand, many cases arise from a seemingly routine interaction with police at home or driving through Texas on the way about your business. Regardless of how your case starts, it requires professional legal help to get the best result. Law enforcement never has your best interests in mind when they arrest and prosecute you for drug charges. However, a skilled criminal defense attorney on your side will work for you and will make every effort to get the best result possible for you.

Informants and Undercover Officers

Law enforcement uses a variety of tactics to investigate drug crimes. One notorious method police use to learn more about criminal activities is called informants. These people are not police officers, but they often work closely with the police to provide information about criminal activity like drug crimes. Many informants are people who have faced criminal charges themselves and who have arranged with the police to provide information about others in exchange for some kind of beneficial treatment in their case. Some informants work with the police for the simple motivation of money. It could be someone you have known for some time or a stranger to you who is working with the police to provide information about your activities.

Whatever the reasons the informant helps the police, though, they can be central to a drug crime investigation and can provide crucial details and evidence that might be key to the charges you face. Some informants meet with police after you have dealt with them and provide details about the types of drugs involved and other activities. Some informants are wired with recording devices to get audio or even video records of conversations and meetings. Some informants are provided with marked money to use in a transaction to help police confirm the facts of the deal and have evidence for a prosecution.

Surveillance and Wiretapping

With a warrant authorizing their investigation, law enforcement can use electronic means of spying to get details about your phone calls, text messages, and even real-life conversations. Police must have probable cause built on other investigatory methods to convince a judge to authorize a warrant for wiretapping or even to install recording devices in locations where you might meet with others.

Electronic surveillance can monitor your communications by phone, email, or social media. Law enforcement has tools that can determine your location and routes of travel using information like cell phone transmission data. Cell phones rely on communication towers to relay signals, so police can access data tied to your phone or computer to track where you have been so that they might build a case against you.

Controlled Transactions

Police will often use undercover officers and informants to set up controlled drug transactions that give them evidence to use in court against you. If they have been observing drug traffic in Travis County, for instance, and have seen you in prior investigations, they may target you with a controlled buy. As part of their efforts to get the proof they need to build a case, they may arrange a drug transaction that involves undercover officers who will attempt to sell or buy drugs. The purchase will involve money that has been marked so it can be traced. After the deal is done, they will confirm that the undercover officer received the type of drugs they suspected to be changing hands, often with field-testing to confirm the substance is the drug at issue. They may arrest you then and seize the money you received as evidence. Since it was previously recorded and marked, they can establish that it came from their “buyer” and that you received it in exchange for the drugs. Typically, controlled buys are complicated arrangements with many moving parts, so an experienced defense attorney may have opportunities to find legal flaws with the process that can help your defense.


Police may conduct surveillance on an area where they suspect that drug activity is taking place. They may use remote means, such as concealed cameras or even drones, or they may place officers in areas that can view the scene where drug transactions might occur. Police use unmarked cars and undercover agents to carry out surveillance, waiting until they see the drug activity that they are looking for before they spring a trap and descend on the scene when they believe they’ve observed a drug transaction in progress.

Drug Task Forces

Many law enforcement agencies have special divisions focused exclusively on detecting and apprehending suspected drug criminals. Typically, task forces at a local level coordinate with state or federal agencies to investigate alleged drug activities, sharing resources and information between the groups to build stronger cases against networks of gangs or cartels that they believe are engaged in drug trafficking. Federal grants provide financial resources, and special programs provide support to local and state drug task forces with equipment and training to increase their reach in drug interdiction efforts in many cases.

Criminal Process of Drug Crime Charges

Suppose you have been arrested for alleged drug crimes and are facing drug charges in Texas. In that case, law enforcement and prosecutors must follow specific procedures throughout, from the search and seizure to the arrest and prosecution. Throughout the process, you have very specific and detailed legal rights that must be recognized and respected. Police officers must follow specific rules in how they investigate suspected crime, how they search you or your home or vehicle, and how they seize evidence that they intend to be used against you in a criminal case.

Prosecutors are responsible for following certain steps in bringing charges and trying to prove the allegations against you beyond a reasonable doubt if they want to get a conviction as charged. With a skilled drug crime attorney on your case, you can challenge the evidence and facts presented against you and present your legal defenses. You may even have the charges reduced or dismissed before trial with the help of experienced legal counsel.


The formal initiation of criminal charges against you typically starts with your arraignment. You will go before a judge or magistrate at an arraignment, who will inform you of the charges against you and ask for your plea. A plea is your formal response to the charges and includes choices of:

  1. Guilty
  2. Not Guilty
  3. No Contest

Generally, it makes sense to plead not guilty to preserve your legal rights to defend against the charges. In some cases, you and your lawyer may have arranged with the prosecutor for a specific plea to resolve the case.

Bail Or Release

Following your plea, the judge will decide whether you are entitled to release from detention pending trial. In some cases, a judge or magistrate will order release on bail to help ensure your return to court and participation in the process of the case. In other cases, the judge will find that the accused poses no threat to the community and will agree to return as directed to answer the criminal charges, so they will allow you to be free while waiting for your next hearing. Conditions may be placed on release, and you will be required to promise to return to court for your next scheduled court date. If the judge orders payment of bail to secure your promise to return, the bail money will be returned to you at the conclusion of the case.


In the pretrial process, you have the chance to view the evidence that will be offered against you. Often, you can reach an agreement with the prosecution to resolve the charges without going to trial. This process is called plea bargaining, and it involves an agreement between you and the government about how to conclude the case outside of the courtroom. You may have a chance to complete certain required actions for a limited time, after which the prosecutor will withdraw the charges on the successful completion of the terms of the agreement.

A plea agreement is subject to approval by the judge. There is always the possibility that the judge will not be convinced that the plea bargain is in the best interests of justice and may reject the plea arrangement. In that case, you might be able to reach different terms with the prosecutor to present a new plea agreement to the court for approval. If you are unable to reach a plea agreement, or the judge will not approve what you have decided on with the prosecutor, your case will proceed toward trial.

Pretrial Motions

Your attorney will typically file motions before your trial starts. Motions are formal legal requests to take some action in your case, such as to exclude certain evidence. If the motion is successful, the excluded evidence cannot be used against you at trial. In some cases, a prosecutor may not be able to prove its case against you without that excluded evidence, and the charges may be dismissed.


If you and your attorney do not resolve the case by a plea bargain or dismissal based on flaws in the case, the charges will go to trial. At trial, the prosecutor makes a case for a conviction on the charges before a judge or jury who will rule on the facts and evidence and determine your guilt or innocence. Your defense attorney will have the opportunity to question witnesses and argue against the evidence the prosecutor presents.

Depending on the facts of your case and defense strategy, your defense attorney may present evidence and witnesses that disputes or helps to disprove the prosecutor’s case. It is critical to know, however, that you have no duty as an accused to present any evidence in your defense. It is up to the prosecutor to make their case against you with the facts and testimony they present. At the conclusion of the evidence, the prosecutor and your attorney will present final arguments about what the evidence showed in the trial and how the judge or jury should interpret the facts.

The judge then explains the law and how the jury should apply that law while deliberating. With all the evidence and arguments before them, the judge or jury then will take some time to consider their verdict in your case.


The verdict is the decision of the factfinder—whether judge or jury—on the issues in your case. Sometimes there may be multiple charges to consider and possible alternatives that could be reached to come to reach a verdict. If you have requested a jury trial, then the jury will go to the jury room to discuss the case among themselves. The law requires a unanimous decision by all the jurors to find you guilty or not guilty of the charges against you.

If they agree on a guilty verdict, your case proceeds to the sentencing phase. If the jurors do not agree on a verdict for all charges or any of the individual elements of the charges, the trial is ended in a hung jury. This result is very different from a verdict of not guilty. A not guilty verdict ends your case, and the charges against you are dropped because the prosecutor did not prove all the elements of the case to the jury. A hung jury means that the prosecutor can refile the charges against you and try the case again to another judge and jury later.


If you have been found guilty by the judge or jury, the sentencing phase of your trial comes next. The sentence is your punishment for the crime for which you were found guilty. Various factors influence the sentence, including the details of the kind of drug crime you were convicted of and your past criminal record. Factors like your age and character can be considered in giving the sentence.


Although appeals from a criminal trial verdict are somewhat rare in Texas drug crimes, your lawyer can advise you if there were serious errors of law or procedure that could lead to dismissal on appeal or an opportunity for a new trial. Your lawyer must show the appeals court exactly what errors the judge, jury, or prosecutor made in presenting or considering your case. The errors that are the basis of your appeal must be serious enough that they caused you to have an unfair trial or an improper outcome to your trial.

Specific Texas Drug Crimes

The major drug crimes under Texas law include possession of controlled substances, delivery, possession with intent to manufacture or distribute, and possession of drug paraphernalia. Within these main categories of drug crimes are a range of potential behaviors that could lead to a conviction if the prosecutor can prove the elements of the crime in your case.


In Texas criminal law, possession of a controlled substance is to have actual management, custody, care, and control of the substance. The law is written to include many circumstances and can apply even in cases where you do not physically possess the drugs on you, but instead, they are in a place that is under your control, and you have access to the area where the substance is stored. This also includes cases where the drugs at issue are not yours exclusively but are shared or commonly managed by you and others, which can also lead to charges of possession.

An element of the crime of possession that the prosecutor must prove includes that you knowingly or intentionally possessed or had control over the drugs. In some cases, you may not have known that a controlled substance was in your vehicle, your backpack, or even your home, so a prosecutor cannot prove that you knowingly possessed them. If someone else put them there and you had no knowledge of them, an element of the crime cannot be established.

Possession With Intent to Manufacture or Distribute

Texas drug laws define manufacturing a controlled substance as processing, preparing, producing, compounding, or converting a substance into a form forbidden by law. This range of definitions covers controlled substances other than marijuana. Simply growing marijuana is not within the definition of manufacturing but is possession. However, creating or blending synthetic marijuana does fall under the law against manufacturing.

Distribution and Delivery

As established by Texas law, delivery and distribution mean essentially the same thing. Delivery means to transfer or sell the drug to someone else, while distribution means to deliver a controlled substance. The law recognizes two types of delivery: actual delivery or constructive delivery.

Actual delivery is physically putting the drug into someone else’s hands. Actual delivery also includes simply offering to sell a drug without completing the hand-off to the other person. Constructive delivery involves a case where you did not physically get involved in handing the drug or offering to hand over the drug to someone. Still, you control the drug and see to its delivery by someone else to the person who receives it. Therefore, a prosecutor can charge constructive delivery against you if you produce the drug for someone else to deliver.

Drug Paraphernalia

Texas law contains an extensive list of items that are considered drug paraphernalia. Essentially any object or item that assists with the creation, manufacture, growth, packaging, or consumption of illegal drugs is considered paraphernalia.

Drug-Based DWI

The same Texas law that forbids driving while intoxicated (DWI) also applies to drug-based intoxication while operating a motor vehicle on public roads. All types of drugs that can have an intoxicating effect on the mind or may interfere with physical control of your body and reflexes can subject you to a DWI charge. Such substances contributing to DWI can include prescription drugs, over-the-counter medications, or controlled substances. The law is written so that the police officer who makes the traffic stop has the discretion to assess your ability and actions in operating your vehicle and evaluate your mental and physical condition when determining whether to arrest you for suspicion of DWI.

The prosecutor must prove beyond a reasonable doubt that you were intoxicated while in control of a motor vehicle, so the officer’s assessment is critical to that case. Unlike an alcohol-based DWI charge, which is more likely to be based on a finding of your blood alcohol content being above .08 % alcohol by breath or blood test, the standard of intoxication for drug-based DWI is more subjective.

Penalties for DWI start with a first offense conviction carrying a penalty of up to 180 days in jail, with a mandatory three-day stay in jail, as well as a fine of up to $2,000 and the loss of your driver’s license for up to a year. If you have a minor child under the age of 15 in your car when you are stopped for a DWI, you may be charged with child endangerment and face jail time of up to two years and a fine of up to $10,000.


Drug crimes involving conspiracy under Texas law require that two or more people agree to commit a crime. To convict an accused of conspiracy to manufacture or distribute drugs, the prosecutor must prove that:

  • Multiple people made a plan and agreed to violate drug laws
  • The defendant was aware of the plan and intended to participate in carrying out the conspiracy
  • The plan was carried out to some degree--in other words, it was “furthered along” by affirmative action by one or more co-conspirators.

So, even if you did not take any action toward carrying out the plan to violate Texas drug laws, if you were aware of the plan and someone in the group that planned the acts took steps toward accomplishing the conspiracy, you can be guilty of conspiracy to manufacture or distribute drugs.

Drug Crime Defenses in Texas

Although drug crimes are aggressively prosecuted and strictly punished under Texas law, it is still true that a skilled Texas drug crimes attorney has several options to challenge a drug crime prosecution. As always, circumstances vary from case to case. It is critical to consult with an experienced attorney as soon as possible when facing drug crime charges to give yourself the best opportunity to meet the charges directly and defend against the prosecution.

Many challenges to drug crime prosecutions begin with evidentiary challenges, based on flaws in gathering evidence by law enforcement along the way toward arrest and prosecution. Experienced criminal defense attorneys can spot flaws in the collection, retention, storage, and use of potential evidence that might provide an opportunity to raise a successful motion to suppress the evidence in question.

Evidence that was gathered in a way that violates the suspect’s constitutional rights may be excluded from trial, sometimes leaving prosecutors without the crucial components they need to build a case that can support a conviction beyond a reasonable doubt. If the motion to suppress is successful, a judge may be compelled to grant a dismissal, or a prosecutor may withdraw the case if it lacks proof of essential elements without the challenged evidence.

Lack of Probable Cause

The initial investigation into your behavior that led to a drug crime arrest and charges must have been supported by probable cause. Police must have a reasonable basis to suspect that there has been or is some criminal activity underway to make a traffic stop or to stop you on the street and perform a search of your person. Law enforcement agents are not allowed to search you, your belongings, your vehicle, or your home without a clear and well-explained reason why they believed you were involved in criminal activity to begin with.

A traffic stop is generally lawful where an officer observes some violation of traffic laws, such as speeding, failure to stop at a traffic signal, failure to signal when changing lanes or turning, or other erratic or illegal driving behavior. But to act beyond the traffic infraction to initiate a criminal investigation for drugs or any other suspected crime, the officer must have evidence to support the belief that you have violated other laws. Factors like an odor of illegal drugs or alcohol or signs of intoxication may permit the officer to continue investigating. Still, each further step in the process requires more probable cause of a suspected crime. They cannot search you or your car without reasonable belief that they will find some evidence of a crime.

Search Incident to Arrest

When you are arrested, police have the right to search you and the area around you. For instance, if you were driving when you were arrested, they might be able to search your car for evidence of drugs or alcohol if they suspect a DWI. If you are arrested on the street or in the park, law enforcement can usually search your clothing and items like a backpack or other personal possessions you have with you in what is called a search incident to arrest. There are limits to the extent of a search if you are arrested at home, limited primarily to a security sweep to look for the presence of anyone else in the home or any safety threats to the officers as they conduct a lawful arrest of you in the home. Evidence obtained in a search exceeding the limited boundaries of search incident to arrest may be subject to a legal challenge by your attorney if the prosecution tries to use it against you at trial.

Improper Search and Seizure

Police cannot search you, your vehicle, or your home without a warrant if there are no emergency circumstances that would compel a search immediately. Law enforcement officers must get a valid search warrant before they are permitted to conduct a search of your home or car.

A few different circumstances can lead to questions about the legality of the search and seizure. If the search was performed according to a warrant, but the warrant has critical flaws (such as incorrect information, false facts, or even blatant lies provided by an informant or officer), the warrant is likely defective, and any evidence is obtained in reliance on it should be excluded. Another possible flaw in a search and seizure is where you did not consent to the search, and the police had no warrant or emergency (exigent) circumstances that would permit an unwarranted search. Another possibility in this category is where your consent was wrongfully obtained by deceit or unlawful threats or compulsion.

When law enforcement officers stop a suspect for an investigation, they must have a reasonably explainable purpose for the investigation based on a belief that the suspect has committed a crime. Simply stopping someone hoping they may find some evidence of criminal behavior is not a sufficient legal basis to support detention or arrest. If there is no evidence that the suspect has violated a law, even a traffic law, when driving, then the stop and investigation are improper. Any evidence discovered during an improper stop will likely be excluded from the court if charges follow the detention.

Improper Questioning

Most people are familiar with the phrase “Miranda warnings” and the statement that is often repeated in legal dramas to the effect that: “you have a right to remain silent, and anything you say can be used against you; you have a right to a lawyer to accompany you when the police question you.” The Bill of Rights to the US Constitution protects you against self-incrimination, meaning that the police cannot trick you or force you to say things that may be used in court against you. If you did not receive the warning about your constitutional rights, often called a “Miranda warning,” it is possible that an experienced criminal defense lawyer can have your statements excluded from evidence. Police can be very intimidating and even threatening in arrest and interrogation situations. As such, it is critical to understand that you have a right to an attorney advising you whenever they ask you questions about potential involvement in criminal activity.

Officers who continue to question you after you have asked for a lawyer and stated a desire not to answer any questions without your lawyer are violating your right to be free from self-incrimination, meaning they cannot be forced to provide evidence against themselves. Once you have made it clear that you do not want to answer questions or discuss the subject alone, law enforcement officers must allow you access to an attorney of your choice before asking any more questions. Police officers may not use their authority to frighten, threaten, or intimidate suspects into providing any information. Threats or acts of physical violence to force a confession violate your right to be free from self-incrimination under the US constitution.

Unknowing Possession

In cases where you were unaware of the presence of drugs in your home or vehicle, such as when someone left their drugs under the seat in your car or out of sight in your home, criminal charges are not appropriate. Areas where relatives, friends, or guests had access to your vehicle or home and where drugs are found by law enforcement officers present a challenge for prosecutors.

A component of a prosecutor’s burden of proof is establishing beyond a reasonable doubt each of the elements of the crime charged against you, so if you can show that you did not know about drugs that were placed there by someone else, the case may be dismissed, or certain charges might be dropped. A skilled drug crimes attorney can establish reasonable doubt about those areas in your home or car that were not under your exclusive control in the time before when the drugs were found there.

Chain of Custody – Flawed Handling of Evidence

When items of evidence are seized by law enforcement agents to be used in a prosecution, the officials must meticulously document the steps in the process, including identifying each person who has authorized access to the substances or items of evidence. Tracing the path of the evidence from where it was obtained to its proposed presentation in court is called the ‘chain of custody.’

Every official, from the officers who seized the items to the custodian of the police evidence room to laboratory employees or experts who may test or assess the substances, has a clear legal duty to document their taking possession of the items, the condition they were found in, and how they were cared for and maintained while in their possession. Suppose the chain of custody is flawed, and there are gaps in the records or inconsistencies in the process of accounting for the people who had evidence in their care. In that case, a careful defense attorney can demonstrate to the court that the chain of custody was broken or the records are unreliable. A successful motion to suppress might follow from the questions raised by the flaws in the chain of custody.

No Affirmative Link to Controlled Substances

A prosecutor has a burden to prove an affirmative link between you and the place where the drugs were found in the case. If the area where police located drugs is in your home or a car used by multiple others, and it is impossible to identify who placed the substances there, it is possible that a skilled defense attorney can have charges dismissed or defeat the allegations in court.


The legal defense of entrapment is available when law enforcement convinces you to commit a crime you would not have otherwise done. In a case of entrapment, police made you commit the crime through persuasion, deception, coercion, or some other forbidden means. Even if you were likely to commit the crime on your own, when the police set up the circumstances so that you commit the crime that you would not have done without their urging, the defense could apply. If the police were to convince you that they needed you to purchase drugs so they could build a case against someone else, but then they arrest you and charge you with possession when you complete the purchase, you would likely have a valid entrapment defense.

No Possession of a Controlled Substance

Sometimes, police officers might mistake one substance for another. If you are charged with possession of a controlled substance, but the substance you had in your possession was not on the list of Texas Controlled Substance Schedule or Penalty Group 1 through 4, you cannot be convicted of the crime of possession as charged. Laboratory tests or expert witness testimony must establish the difference between what you had in your possession and the controlled substance in the charges against you.

Lawful Possession of a Controlled Substance

In a case where your medical professional prescribed the controlled substance at issue, you might have a defense to the charges. Some drugs on the Controlled Substances schedules cannot be legally prescribed, so this defense may not apply depending on the particular substance. Still, for those drugs that have medical uses and for which you have a valid prescription, you cannot be criminally charged for your possession of them. In some cases where you have a large amount of the prescribed drug and are determined to have delivered the substance to others, the defense of lawful possession may be unavailable to you.

Specific Texas Controlled Substances

While Texas laws treat drug crimes harshly, some charges and potential penalties are much more severe than others. The amount of the particular drug at issue and the behavior prohibited, whether possession or delivery, factor into the charges and punishments that can go with specific drug crimes.

Texas Cocaine Laws and Penalties

It is illegal to manufacture, deliver, or possess cocaine in any amount in Texas and will bring felony charges if prosecuted. The amount of cocaine for which you are charged will impact the potential penalty you can face.

Possession of less than 1 gram is a state jail felony carrying sentences from 6 months in jail up to 2 years. First-time offenders may have the option of probation rather than jail. Possession of cocaine from 1 to 4 grams is charged as a third-degree felony. Penalties range from jail sentences of 2 to 10 years and fines up to $10,000.

Manufacturing cocaine may result in 180 days to 2 years of jail time and a $10,000 fine for less than a gram. Over 400 grams can bring a sentence of 15 to 99 years in prison and a $250,000 fine.

Texas Methamphetamine Laws and Penalties

Possession, distribution, or manufacture of methamphetamine—sometimes called crystal meth or meth—is punished as a felony, carrying penalties of more than a year in prison for any amount. Possession of less than 1 gram of meth might lead to a prison term of 2 years and a $10,000 fine. Possession of amounts ranging from 4 to 199 grams of meth is charged as second-degree felonies, with the potential for 2 to 20 years in prison.

Marijuana Laws and Penalties in Texas

While many states have changed their laws to allow medical or recreational use of marijuana without criminal consequences, Texas laws continue to provide strict punishment for possession, cultivation, trafficking, delivery, or sales of cannabis products. Possession of less than two ounces of marijuana is a Class B misdemeanor, with penalties of up to 180 days in county jail and two years of probation (community supervision). Having 2 to 4 ounces can bring a 1-year jail sentence. Various local areas and cities in Texas give different attention to small amounts of marijuana possession, so the laws may not be enforced in some jurisdictions as in other areas.

You want to avoid the life-changing consequences of a Texas drug crime conviction. There are genuine risks to your freedom and reputation when you face drug crime charges in Texas. Don’t make another mistake by underestimating the severity of your situation and trying to solve it alone. Reach out to a drug crimes defense attorney at Cofer & Connelly at (512) 991-0576 or online to learn more about getting a skilled legal defense.

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