Is Possession of a Controlled Substance a Felony in Texas?

Most of the time, yes. In Texas, possessing any amount of a drug in Penalty Group 1, 1-A, 1-B or 2 is a felony, and “any amount” starts below a single gram. Cocaine, meth, heroin, fentanyl, pills like oxycodone, MDMA, mushrooms and THC vape oil all fall there. The misdemeanor range only exists for Penalty Groups 3 and 4 under 28 grams, and for marijuana and synthetic cannabinoids up to four ounces.

So the answer turns on two facts: which penalty group the lab puts the substance in, and what it weighs. Both can be wrong. Call (713) 664-4000 with what you were charged with and what the paperwork says it weighed, and we can usually tell you the grade on the first call.

Which drugs are a felony in any amount

The Texas Controlled Substances Act sorts drugs into penalty groups, and possession of the first four starts at a state jail felony:

• Penalty Group 1 (§ 481.102): cocaine, methamphetamine, heroin and other opium derivatives, oxycodone in any form, hydrocodone other than the low-dose combination pills covered below, PCP, GHB, ketamine, and Rohypnol.
• Penalty Group 1-B (§ 481.1022): fentanyl and its analogs.
• Penalty Group 1-A (§ 481.1021): LSD and the NBOMe compounds, measured in abuse units instead of grams.
• Penalty Group 2 (§ 481.103): MDMA, psilocybin mushrooms, amphetamine (including Adderall without a prescription), and tetrahydrocannabinols other than in marijuana itself, which is why a THC cartridge is charged as a felony when a bag of flower isn’t. Our page on getting caught with a THC pen covers that one.

How many grams is a felony in Texas?

It depends on the penalty group, and for most drugs people ask about, the answer is any amount. Possessing less than one gram of a Penalty Group 1, 1-B or 2 substance is already a state jail felony, and that includes oxycodone, Percocet included, when you don’t have a prescription for it. The 28-gram line only applies to Penalty Groups 3 and 4, which cover drugs like Xanax, Valium, Ambien and anabolic steroids. Hydrocodone is the one people trip over. Under Health and Safety Code § 481.104(a)(4), a hydrocodone combination pill with no more than 15 milligrams per tablet and another active ingredient, the way Norco pairs it with acetaminophen, is Penalty Group 3 and follows the 28-gram line. Pure hydrocodone is Penalty Group 1. Marijuana and synthetic cannabinoids become a felony above four ounces.

Possession grades by penalty group

Group	Statute	Misdemeanor	Felony
PG 1 and 1-B	§ 481.115	None	Under 1 g state jail; 1 to 4 g third degree; 4 to 200 g second; 200 to 400 g first; 400 g or more, 10 to 99 years or life and up to $100,000
PG 1-A	§ 481.1151	None	Under 20 abuse units state jail; 20 to 80 third; 80 to 4,000 second; 4,000 to 8,000 first; 8,000 or more, 15 to 99 or life and up to $250,000
PG 2	§ 481.116	None	Under 1 g state jail; 1 to 4 g third; 4 to 400 g second; 400 g or more, 5 to 99 or life and up to $50,000
PG 2-A (synthetic cannabinoids)	§ 481.1161	2 oz or less Class B; over 2 to 4 oz Class A	Over 4 oz to 5 lb state jail; to 50 lb third; to 2,000 lb second; over 2,000 lb first
PG 3 (Xanax, Valium, Ambien, steroids, low-dose hydrocodone combination pills)	§ 481.117	Under 28 g Class A	28 to 200 g third; 200 to 400 g second; 400 g or more, 5 to 99 or life and up to $50,000
PG 4	§ 481.118	Under 28 g Class B	28 to 200 g third; 200 to 400 g second; 400 g or more, 5 to 99 or life and up to $50,000
Marijuana	§ 481.121	2 oz or less Class B; over 2 to 4 oz Class A	Over 4 oz to 5 lb state jail; to 50 lb third; to 2,000 lb second; over 2,000 lb first

What those grades carry under Penal Code Chapter 12: a Class B is up to 180 days in county jail and a $2,000 fine; a Class A is up to a year and $4,000; a state jail felony is 180 days to two years in a state jail and up to $10,000; a third-degree felony is two to ten years in prison; a second-degree felony is two to twenty; a first-degree felony is five to 99 or life. The drug statutes raise the fines and the floors at the top tiers, as the table shows.

The weight includes everything

Every one of those thresholds is measured “by aggregate weight, including adulterants or dilutants.” The lab weighs the whole mixture, not the pure drug inside it. Cut cocaine is weighed with the cut. A pill is weighed as a pill, not as the milligrams of active ingredient in it, which is how a bottle of pressed tablets turns into a second-degree felony. We covered that in detail for Xanax, where it decides most cases.

And there’s no floor under Penalty Group 1. A pipe with a measurable residue in it can support a state jail felony charge. The fights in a residue case are over whether the amount the lab found is enough to prove you knew it was there, and whether the lab’s number holds up at all.

A first state jail possession means probation, by statute

Under Code of Criminal Procedure Art. 42A.551(a), a person convicted of state jail felony possession under § 481.115(b), § 481.116(b), or the state jail tiers of marijuana and synthetic cannabinoids must be placed on community supervision. The judge doesn’t get a choice. The exceptions are a prior felony conviction, a conviction that came from an adjudication after deferred, and possession over five abuse units of LSD or over a pound of marijuana or synthetic cannabinoids.

That’s the floor, not the goal. Under Penal Code § 12.44(a), the time on a state jail felony can be served in county jail at misdemeanor length, but that’s still a felony conviction. A true misdemeanor takes the prosecutor, either asking to prosecute the case as a Class A under § 12.44(b) or agreeing to reduce the charge. Pretrial diversion, deferred adjudication, a dismissal or an acquittal can keep the felony off your record entirely. Which of those is realistic depends on the county and the evidence, and it’s worth knowing before you plead to anything.

Near a school, the grade goes up

Health and Safety Code § 481.134 raises possession charges committed within 1,000 feet of school property, a youth center, or a playground, or on a school bus. Under subsection (d), state jail possession of Penalty Group 1 or 2 becomes a third-degree felony. Under subsection (e), a Penalty Group 3 Class A or a Class A amount of marijuana becomes a state jail felony, and under subsection (f) a Penalty Group 4 Class B becomes a Class A. At the felony tiers, subsection (c) adds five years to the minimum and doubles the maximum fine. In a city laid out like Houston, a thousand feet reaches a lot of traffic stops, and the distance is something the State has to prove with a measurement that can be wrong.

A prescription isn’t something you have to prove

Each possession statute defines the offense as possessing the drug “unless the person obtained the substance directly from or under a valid prescription.” That clause sits inside the offense, which makes it something the State has to disprove rather than a defense you have to raise. If the pills in your car were prescribed to you, the fight is often over whether the prosecutor can show otherwise, not over whether you can find the bottle.

Where these cases are won

Knowing possession. The State has to prove you knew the drug was there and exercised control over it. When drugs turn up in a shared car or apartment, that proof depends on links between you and the drugs, and the links are often thin. Our page on the legal definition of possession goes through how that works.

The search. Under Code of Criminal Procedure Art. 38.23, evidence obtained in violation of the law can’t be used against you. Drug cases start with a stop, a search, or a warrant, and each of those has to be justified on its own.

The lab. The penalty group and the weight both come from a lab report. Identification by chromatography, the weight that was recorded, and the chain of custody between the scene and the balance can all be challenged. Jay Blass Cohen is an ACS-CHAL Forensic Lawyer-Scientist trained in forensic chromatography for both alcohol and drugs, which means the lab report on your case gets read by someone who knows how it was produced.

Charged with possession in Houston? Call Blass Law

We’ve defended drug cases in Harris County since 2009, and criminal defense is the only thing this office does. Our Houston possession of a controlled substance lawyer page covers how we handle these cases from arrest through trial.

Call (713) 664-4000. Tell us the substance, the weight on the paperwork, and where the stop happened.