Texas doesn’t grade a drug case by how dangerous the drug is. It sorts every controlled substance into a penalty group, then sets the charge by the group and the weight, cut and all. That’s why a crumb of cocaine under a gram is a state jail felony while a few Xanax bars are a misdemeanor, and why a THC vape cart is a felony while the same weight of flower is a Class B. Marijuana sits outside the groups entirely and is graded by ounces and pounds. Call (713) 664-4000 for a free consultation.
Both the group and the weight come from a lab report, and lab reports get things wrong. Jay Blass Cohen is trained in forensic chromatography, the same kind of testing the crime lab runs, and holds the ACS-CHAL Forensic Lawyer-Scientist designation. He’s been a Houston criminal defense lawyer since 2009 and has never worked for the prosecution. If you were just arrested, don’t explain to anyone where the drugs came from until you’ve talked to us.
Which penalty group is my drug in?
| Drug | Group | Smallest possession charge |
|---|---|---|
| Cocaine (powder or crack) | Group 1 (Health and Safety Code § 481.102(3)(D)) | Under 1 gram: state jail felony |
| Methamphetamine | Group 1 (§ 481.102(6)) | Under 1 gram: state jail felony |
| Heroin | Group 1 (§ 481.102(2)) | Under 1 gram: state jail felony |
| Oxycodone, and hydrocodone that isn’t a combination pill | Group 1 (§ 481.102(3)(A)) | Under 1 gram: state jail felony |
| Fentanyl, including pressed “M30” pills | Group 1-B (§ 481.1022) | Under 1 gram: state jail felony |
| Hydrocodone combination pills like Norco (15 mg or less per pill, with a non-narcotic like acetaminophen) | Group 3 (§ 481.104(a)(4)) | Under 28 grams: Class A misdemeanor |
| Xanax (alprazolam) and Valium (diazepam) | Group 3 (§ 481.104(a)(2)) | Under 28 grams: Class A misdemeanor |
| Codeine cough syrup (200 mg of codeine or less per 100 mL, with other medicine in it) | Group 4 (§ 481.105(1)), though the same syrup also fits the Group 3 codeine listing (§ 481.104(a)(4)) and can be charged that way | Under 28 grams: Class B misdemeanor (Class A if charged as Group 3) |
| THC vape oil, wax and shatter | Group 2 (§§ 481.103(a)(1), 481.002(26)(A)) | Under 1 gram: state jail felony |
| Ecstasy (MDMA) and psilocybin mushrooms | Group 2 (§ 481.103(a)) | Under 1 gram: state jail felony |
| LSD | Group 1-A (§ 481.1021) | Fewer than 20 units: state jail felony |
| K2 and spice | Group 2-A (§ 481.1031) | 2 ounces or less: Class B misdemeanor |
| Marijuana (flower) | No group (§ 481.121) | 2 ounces or less: Class B misdemeanor |
THC concentrates land in Group 2 because Texas law takes the resin out of the definition of marijuana. Our page on getting caught with a THC pen goes deeper on vapes, and our Xanax page covers pills.
Possession grades by group and weight
| Group | Lowest grade | Third-degree felony | Second-degree felony | First-degree felony |
|---|---|---|---|---|
| 1 and 1-B (§ 481.115) | Under 1 g: state jail felony | 1 g to under 4 g | 4 g to under 200 g | 200 g to under 400 g; 400 g or more is 10 to 99 years or life and up to a $100,000 fine |
| 1-A (§ 481.1151) | Fewer than 20 units: state jail felony | 20 to 79 units | 80 to 3,999 units | 4,000 to 7,999 units; 8,000 or more is 15 to 99 years or life and up to a $250,000 fine |
| 2 (§ 481.116) | Under 1 g: state jail felony | 1 g to under 4 g | 4 g to under 400 g | 400 g or more: 5 to 99 years or life, up to a $50,000 fine |
| 3 (§ 481.117) | Under 28 g: Class A misdemeanor | 28 g to under 200 g | 200 g to under 400 g | 400 g or more: 5 to 99 years or life, up to a $50,000 fine |
| 4 (§ 481.118) | Under 28 g: Class B misdemeanor | 28 g to under 200 g | 200 g to under 400 g | 400 g or more: 5 to 99 years or life, up to a $50,000 fine |
| 2-A and marijuana (§§ 481.1161, 481.121) | 2 oz or less: Class B; over 2 to 4 oz: Class A; over 4 oz to 5 lb: state jail felony | Over 5 lb to 50 lb | Over 50 lb to 2,000 lb | Over 2,000 lb: 5 to 99 years or life, up to a $50,000 fine |
For reference, a Class B carries up to 180 days in jail and a $2,000 fine, and a Class A up to a year and $4,000. Felonies run from 180 days to 2 years in a state jail, to 2 to 10 years in prison for third degree, 2 to 20 for second degree and 5 to 99 or life for first degree, each with a fine up to $10,000 unless the table says otherwise (Penal Code §§ 12.21, 12.22, 12.32 to 12.35).
The weight includes the cut
Every weight in that table is “aggregate weight, including adulterants or dilutants” (§ 481.115(b) and the sections after it; § 481.002(5)). The State doesn’t weigh the pure drug. It weighs the baking soda or the pill binder right along with it. A pressed pill is weighed whole, so it doesn’t take many to cross from a state jail felony into a third-degree felony. Codeine syrup is the harshest example: a full pint weighs more than 400 grams, all of it counts, and one bottle can be charged as a first-degree felony.
The lab is where a lot of these cases come apart. A color-changing field test is a screening tool, not an identification. The real answer comes from the crime lab’s instruments, and every step leaves data we can check, from how the sample was pulled to whether the analyst’s conclusion matches the raw results. Jay is a certified Drug Recognition Expert with forensic chromatography training, so we read the lab file, not just the one-page report. In a THC case, the definition of a controlled substance leaves out hemp, meaning cannabis with no more than 0.3 percent delta-9 THC by dry weight (§ 481.002(5); Agriculture Code § 121.001). If the State can’t show what it found is over that line, it has a problem.
Drug-free zones can push the grade up
Possession within 1,000 feet of a school’s property, a youth center or a playground, or on a school bus, raises the bottom of the ladder (§ 481.134(d) to (f)). Under a gram of a Group 1 or Group 2 drug becomes a third-degree felony. Xanax under 28 grams becomes a state jail felony. Over 2 to 4 ounces of marijuana becomes a state jail felony too. Two ounces of marijuana or less becomes a Class A, unless it happened inside a private home with no minor present (§ 481.134(g)). At third-degree weights and up, the zone adds five years to the minimum and doubles the maximum fine (§ 481.134(c)), and that punishment can’t run at the same time as a sentence on another charge (§ 481.134(h)). We check the distance ourselves and make the State prove it at trial.
What the State has to prove
That you knowingly or intentionally possessed the drug, and possession means actual care, custody, control or management (§§ 481.115(a), 481.002(38)). Being near drugs isn’t enough. With four people in a car and one baggie under a seat, the State needs more than where you were sitting, which is why our page on drugs found in a car exists. A valid prescription is an exception written into the statute itself. There’s also a defense for being the first person to call 911 for someone else’s overdose (and staying and cooperating), or for being the person who overdosed. It covers only the lowest grade of each offense (the two lowest for marijuana and K2), and it’s off the table if you have a prior drug conviction or deferred, already won an earlier case with this defense, made a similar call in the past 18 months, or police were already arresting you or serving a search warrant when the call was made (§ 481.115(g), (h)). And before any of that, most of these cases turn on whether the search was legal. Our Houston drug possession and possession of a controlled substance pages cover how we fight the stop and the search.
First offense: probation and your record
On a state jail felony for possession, like under a gram of cocaine or meth, a judge has to put you on probation instead of sending you to state jail, unless you have a prior felony conviction (one punished as a misdemeanor doesn’t count) or the conviction came from revoking a deferred adjudication (Code of Criminal Procedure Art. 42A.551(a), (b)). That’s still a felony conviction, though. We push for a dismissal first. If the prosecutor offers pretrial intervention and you finish it, the case is dismissed and the arrest can be expunged (Art. 55A.053(a)(2)(C)). See deferred adjudication and who is eligible for probation in Texas.
Drug possession results from our case files
- Not guilty, Harris County jury: felony cocaine under a gram. A deputy said he watched our client toss a tissue-wrapped rock that field tested positive for cocaine.
- Dismissed in Harris County: Group 1, 1 to 4 grams. Deputies serving a search warrant on an illegal gambling room found 3.5 grams of methamphetamine in our client’s front pocket.
- Dismissed in Montgomery County: Group 2, under a gram. Narcotics interdiction deputies stopped our client for a broken tail light and found a THC oil vape in the center console.
- Dismissed in Fort Bend County: Group 2, 1 to 4 grams of psilocybin mushrooms.
See more of our case results. Prior results do not guarantee a similar outcome.
Penalty group questions we hear
Is fentanyl possession punished more harshly than other drugs?
For possession, Group 1-B uses the same weight ladder as Group 1 (§ 481.115). Fentanyl gets its own, separate statute for manufacture and delivery (§ 481.1123), and that’s where the stakes climb.
Can the charge drop if the lab weight comes back lower?
It should. The weight in an arrest report is often a field weight, sometimes with the baggie. What counts is the weight the State can prove, and when the lab number lands under a line, we push to bring the charge down with it.
Related charges
See our pages on drug distribution, drug conspiracy, federal drug charges and Houston drug charges in general.
Charged with a drug offense in Houston? Call Blass Law
Jay Blass Cohen has defended drug cases in Houston since 2009 and has never worked for the prosecution. We’ll get the lab file and the search video and tell you what the State can actually prove. Call (713) 664-4000 or fill out the form on this page. If you were arrested this week, call now, while the stop and search video still exists.