Every week, dozens of people are arrested for possession of a controlled substance throughout the Houston area. Texas has some of the harshest drug laws in the country. A drug possession conviction can lead to jail time, fines, and a permanent criminal record. The most commonly charged substances include marijuana, opioids, cocaine, methamphetamine, ecstasy/MDMA, and prescription drugs, but Texas law criminalizes the possession of hundreds of controlled substances.
Because drug possession cases frequently involve searches of persons, vehicles, and homes, law enforcement must follow strict legal procedures. If police violate your constitutional rights, evidence may be suppressed. Hiring an experienced Houston drug possession defense attorney can make the difference between a conviction and a dismissal.
Attorney Jose Ceja is a former felony drug prosecutor and is Board Certified in Criminal Law, a distinction earned by only a small percentage of Texas attorneys. He has successfully handled thousands of drug cases and understands how to challenge search and seizure issues, evidentiary weaknesses, and legal defenses to fight for the best outcome possible. Mr. Ceja is recognized as a Texas Super Lawyer.
How are drug possession cases defended?
The exact defense strategy in a drug possession case depends on the unique facts of each situation. Prosecutors must prove beyond a reasonable doubt that the accused knowingly possessed a controlled substance. Many defenses focus on challenging the element of possession itself. Below are key legal concepts related to possession that may form the basis of a defense.
Challenging Possession in Drug Possession Cases – Possession as a Defense
In Texas, drug possession is defined under the Texas Health and Safety Code 481.002 as having “actual care, custody, control, or management” of a controlled substance. The law requires that a person knowingly or intentionally possesses the drug—meaning:
- Mere presence near drugs is not enough for a conviction.
- The prosecution must prove control and knowledge beyond a reasonable doubt.
- Possession does not require ownership—you can be charged even if the drugs weren’t yours.
Actual vs. Constructive Possession
- Actual Possession: The drugs are found on your person (e.g., in your pocket, purse, or hand).
- Constructive Possession: The drugs are found near you, but the prosecution argues you still had control or access (e.g., drugs in a shared apartment or vehicle).
Search & Seizure Defenses in Drug Cases
Many drug possession cases involve illegal searches that violate a defendant’s Fourth Amendment rights. Common search and seizure defenses include:
- Lack of Probable Cause: The police must have a valid legal reason to stop or search you.
- Illegal Traffic Stop: If the initial stop was unlawful, any evidence found could be suppressed.
- Invalid Search Warrant: A warrant must be based on probable cause and legally executed.
- Unlawful Consent Searches: If you did not freely and voluntarily consent to a search, evidence may be excluded.
- Improper Search Incident to Arrest: Police cannot search beyond legal limits without justification.
- Violation of Miranda Rights: Statements obtained in violation of your rights may be inadmissible.
A skilled Houston drug possession lawyer will analyze whether your rights were violated and file motions to suppress evidence when appropriate.
Other Legal Defenses to Drug Possession
Apart from search and seizure violations, other legal defenses may apply, including:
- Lack of Knowledge: If you did not know the drugs were present, the prosecution cannot prove possession.
- Affirmative Links Doctrine: The State must affirmatively link you to the drugs, particularly in shared spaces. In Evans v. State (2006), the Texas Court of Criminal Appeals ruled that simply being near drugs is not enough—prosecutors must show affirmative links between the accused and the substance.
- Valid Prescription: If you had a lawful prescription for the substance in question, you may have a defense.
- Entrapment: If law enforcement improperly induced you to commit the offense, charges may be challenged.
- Overdose Defense: Under Texas law, the first person to call 911 in an overdose emergency may have a defense.
- Illegal Traffic Stops: If an unlawful stop led to your arrest, evidence could be suppressed under Wong Sun v. United States, 371 U.S. 471 (1963), which established the “fruit of the poisonous tree” doctrine.
How do penalty groups work in Texas drug possession cases?
Under Texas law, “controlled substances” refer to substances and compounds specifically listed under one of the seven penalty groups found in the Texas Health and Safety Code. The groups are organized by the class of substance, whether the substances have any accepted medical or scientific use and their potential for abuse or addiction. Each penalty group has its own sentencing statute based on amounts of substances that are possessed. As noted above, the most common charges in the Houston area are based on the possession of THC (Penalty Group 2), cocaine (Penalty Group 1), heroin (Penalty Group 1), methamphetamine (Penalty Group 1) and ecstasy/MDMA (Penalty Group 2).
Penalty Group 1: Under Texas Health and Safety Code 481.102, Penalty Group 1 includes cocaine, methamphetamine, as well as many opiates and related substances, including heroin, codeine, oxycodone, opium, morphine. The possession of any amount of a substance in Penalty Group 1 is a felony. Possession of Penalty Group 1 substances is punished as follows:
- State jail felony punishable by 180 days to 2 years for possession under 1 gram.
- Third-degree felony punishable by 2 years to 10 years for possession of one gram to four grams.
- Second-degree felony punishable by 2 years to 20 years for possession of four grams to 200 grams.
- First-degree felony punishable by 5 years to 99 years for possession of 200 grams to 400 grams.
- Enhanced first degree felony punishable by 10 years to life for possession of 400 grams or more.
Penalty Group 1-A: Under Texas Health and Safety Code 481.1021, Penalty Group 1-A includes LSD and chemically similar compounds as well as certain psychoactive drugs known as phenethylamines. Unlike most drugs, Penalty Group 1-A is not punished by weight, but by “abuse unit” (this is due to the extremely high potency of LSD and other drugs in this penalty group). An abuse unit is defined as a single “unit” (or dose), or quarter inch section of blotter paper (if not perforated), or 40 micrograms of the controlled substance if it is in liquid form. Possession of Penalty Group 1 substances is punished as follows:
- State jail felony punishable by 180 days to two years for 19 or less abuse units.
- Third-degree felony punishable by 2-10 years for 20 to 79 abuse units.
- Second-degree felony punishable by 2-20 years for 80 to 3999 abuse units.
- First-degree felony punishable by 5-99 years for 4000 to 7999 abuse units.
- Enhanced first-degree felony punishable by 15-99 years for 8000 or more units.
Penalty Group 1-B: Under Texas Health and Safety Code 481.1022, Penalty Group 1-B includes fentanyl and compounds that are chemically related to fentanyl. Due to increasing concern over fentanyl overdoses, this group was added in 2021. Possession of Penalty Group 1-B substances is punished as follows:
- State jail felony punishable by 180 days to 2 years for possession under 1 gram.
- Third-degree felony punishable by 2 years to 10 years for possession of one gram to four grams.
- Second-degree felony punishable by 2 years to 20 years for possession of four grams to 200 grams.
- First-degree felony punishable by 5 years to 99 years for possession of 200 grams to 400 grams.
- Enhanced first degree felony punishable by 10 years to life for possession of 400 grams or more.
Penalty Group 2: Under Texas Health and Safety Code 481.103, Penalty Group 1-B includes substances containing THC (other than marijuana plant/flower or hemp), PCP, amphetamines (including Adderall) and many psychedelic substances such as mescaline, DMT, 2C-B, psilocybin (including magic mushrooms) and ecstasy/MDMA. Possession of Penalty Group 2 substances is punished as follows:
- State jail felony punishable by 180 days to 2 years for possession under 1 gram.
- Third-degree felony punishable by 2 years to 10 years for possession of one gram to four grams.
- Second-degree felony punishable by 2 years to 20 years for possession of four grams to 200 grams.
- First-degree felony punishable by 5 years to 99 years for possession of 200 grams to 400 grams.
- Enhanced first degree felony punishable by 10 years to life for possession of 400 grams or more.
Penalty Group 2-A: Under Texas Health and Safety Code 481.1031, Penalty Group 2-A includes many synthetic cannabinoids (like “spice” or “K2) as well as some precursors to synthetic cannabinoids. Possession of Penalty Group 2-A substances is punished as follows:
- Class “B” misdemeanor punishable by up to 180 days in jail for two ounces or less.
- Class “A” misdemeanor punishable by up to a year in jail for possession of two ounces to four ounces.
- State jail felony punishable by 180 days to 2 years for possession of four ounces to five pounds.
- Third-degree felony punishable by 2 years to 10 years for possession of five pounds to 50 pounds.
- Second-degree felony punishable by 2 years to 20 years for possession of 50 pounds to 5000 pounds.
- First-degree felony punishable by 5 years to 99 years for possession of more than 2000 pounds.
Penalty Group 3: Under Texas Health and Safety Code 481.104, Penalty Group 3 consists of many drugs which have some accepted medical use, including many pain killers, anti-anxiety medications and tranquilizers. This includes substances like valium (diazepam), Xanax (alprazolam), Ritalin (methylphenidate), Lorazepam (Ativan) as well as many anabolic steroids. Possession of Penalty Group 3 substances is punished as follows:
- Class “A” misdemeanor punishable by up to a year in jail for possession of less than 28 grams.
- Third-degree felony punishable by 2 years to 10 years for possession of 28 grams to 200 grams.
- Second-degree felony punishable by 2 years to 20 years for possession of 200 grams to 400 grams.
- First-degree felony punishable by 5 years to 99 years for possession of more than 400 grams.
Penalty Group 4: Under Texas Health and Safety Code 481.105, Penalty Group 4 includes substances with an accepted medical use that also include a narcotic that “confers valuable medicinal qualities.” This includes cough syrups with smalls amounts of codeine or opium. Possession of Penalty Group 4 substances is punished as follows:
- Class “B” misdemeanor punishable by up 180 days in jail for possession of less than 28 grams.
- Third-degree felony punishable by 2 years to 10 years for possession of 28 grams to 200 grams.
- Second-degree felony punishable by 2 years to 20 years for possession of 200 grams to 400 grams.
- First-degree felony punishable by 5 years to 99 years for possession of more than 400 grams.
Marijuana and THC Possession – Under Texas law, the possession of marijuana and THC concentrates are treated differently. Marijuana is defined as the plant and every preparation of the plant but does not include extracts or oils made from the plant (like marijuana vapes or edibles), which are punished more harshly under Penalty Group 2. Under Texas Health and Safety Code 481.121 the possession of marijuana plant/flower is punished as follows:
- Class “B” misdemeanor punishable by up to 180 days in jail for two ounces or less.
- Class “A” misdemeanor punishable by up to a year in jail for possession of two ounces to four ounces.
- State jail felony punishable by 180 days to 2 years for possession of four ounces to five pounds.
- Third-degree felony punishable by 2 years to 10 years for possession of five pounds to 50 pounds.
- Second-degree felony punishable by 2 years to 20 years for possession of 50 pounds to 5000 pounds.
- First-degree felony punishable by 5 years to 99 years for possession of more than 2000 pounds.
Potential Immigration Consequences of a Drug Possession Charge
A drug possession conviction can have serious immigration consequences, including:
- Deportation (removal from the U.S.)
- Ineligibility for a visa or green card
- Denial of U.S. citizenship
- Bars on reentry into the U.S. after travel abroad
Because immigration laws are complex, we strongly recommend consulting with an immigration attorney if you are not a U.S. citizen. Ceja Law Firm does not provide immigration representation.
Frequently Asked Questions (FAQ)
Can a first-time drug possession charge be dismissed in Texas?
Yes, dismissal is possible if evidence was obtained illegally, if there is insufficient proof of possession, or if you qualify for a pre-trial diversion program.
What is a pre-trial diversion for drug possession?
Pre-trial diversion programs allow first-time offenders to complete certain conditions (such as drug treatment) in exchange for a dismissal. The availability and requirements of these programs vary by county in Texas. An experienced Houston drug possession attorney can tell you what programs may be available in Harris County.
What should I do if I was arrested for possession of drugs in Houston?
- Do not make any statements to the police.
- Do not consent to searches without a warrant.
- Contact a Houston drug possession attorney immediately.
Will a possession conviction stay on my record?
Yes, unless you qualify for expunction or non-disclosure, which seals or removes the charge from your record.
Expunction & Record Sealing Options
A drug possession charge can have lasting effects on employment, housing, and other aspects of life. However, some individuals may qualify for an expunction or non-disclosure order to clear their records.
- Expunction: If your case was dismissed, or you completed a pre-trial diversion program, you may be eligible to have the charge completely erased.
- Order of Non-Disclosure: If you received deferred adjudication probation and successfully completed it, you may be able to seal your record so it does not appear on most background checks.
Clearing a drug charge from your record can protect your future opportunities. If you believe you may qualify, consult with an attorney to discuss your options.
Why Choose Ceja Law Firm for Your Drug Possession Defense?
Attorney Jose Ceja is a former felony drug prosecutor, Board Certified in Criminal Law, and a dedicated advocate for individuals facing drug possession charges. He understands how prosecutors build drug possession cases and knows how to fight back. Call today for a free consultation.
