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Is drug possession a felony? Like many responses when it comes to the law, the answer is that it depends. Based on the specific drug and quantity of the drug involved, drug possession may result in a felony in Texas. Texas is notoriously harsh when prosecuting drug offenses, and the resulting consequences can be severe. Whether you are facing misdemeanor or felony charges, it’s crucial to understand how the law defines and prosecutes drug crimes.
If you’re in the Austin area and have been charged with drug possession, our Austin Drug Crimes Attorney can help you defend your rights and protect your future. Call us at 512-369-3737 for a free consultation, or schedule a free consultation here.
In Texas, drug possession can be classified as either a misdemeanor or a felony, depending on several factors. The primary factors that determine whether drug possession is a felony include the type of drug, the amount in your possession, and whether there is evidence suggesting intent to distribute. Texas classifies drugs into penalty groups, with substances like heroin, methamphetamine, and cocaine leading to harshest penalties.
For example, possession of less than one gram of heroin or cocaine is typically charged as a state jail felony. Still, possession of larger quantities can result in third-degree, second-degree or even first-degree felony charges. For marijuana, possession of small amounts is generally a misdemeanor, while larger quantities (over four ounces) can lead to felony charges. You can read more about the details of drug penalties in the Texas Controlled Substances Act.
Understanding the difference between felony and misdemeanor is crucial, as the two classifications carry very different legal consequences. The distinction hinges on the type of substance, the quantity, and one’s criminal history.
In Texas, felony drug possession is typically reserved for cases involving larger quantities of controlled substances or more dangerous drugs. For instance, possession of any usable amount of cocaine, methamphetamine, or heroin is a felony. Additionally, any possession of a drug classified in Penalty Group 1—such as opioids and synthetic narcotics—will be charged as a felony.
The actual usable amount of the substance matters. Possession of 3.9 grams of a substance in penalty group 1 can land you up to 10 years in prison. Possession of 4.0 grams of the same substance could land you up to 20 years.
Controlled substances categorized under Penalty Group 1/1A are considered the most severe, as they have no recognized medical use and are considered highly addictive and dangerous. The most common controlled substances categorized under Penalty Group 1/1A are:
The weight determines how serious it is — possession of one to four grams in Penalty Group 1 is prosecuted as a third-degree felony.
This infraction typically involves small quantities of drugs that are considered less dangerous, such as marijuana. In Texas, possession of less than two ounces of marijuana is a Class B misdemeanor, punishable by up to 180 days in jail and a fine of up to $2,000. Marijuana possession of 2-4 ounces is considered a Class A misdemeanor carrying a range of punishment of up to 1 year in county jail and a fine of up to $4,000.
A felony drug possession charge carries life-altering consequences. The repercussions you could face depend on the drug type, amount, and whether the court determines that you intended to distribute the substance. They also vary based on your previous criminal record.
These outlines are based on the drug’s amount and the penalty group classification. For example, possession of a Penalty Group 1 substance (like heroin or cocaine) in quantities of:
For Penalty Group 2 substances, like MDMA (ecstasy) or amphetamines, the penalties are slightly less severe, but still significant.
Controlled substances categorized under Penalty Group 2/2A have no recognized medical use and are considered highly addictive and dangerous. The most common controlled substances categorized under Penalty Group 2/2A are:
Delta-9 THC v. Marijuana, Delta-8/ 10 THC, and Hemp
Marijuana, Delta-8 THC, and Delta-10 THC are not categorized under Penalty Group 2/2A. Under Texas law, marijuana is defined as the plant cannabis sativa L. with a delta-9 THC concentration of more than 0.3 percent; whereas, a substance is legally defined as hemp if it contains less than 0.3 percent delta-9 THC concentration. (Tex. Agriculture Code § 121.001). For now, Delta-8 THC and Delta-10 THC are not included under the legal definition of Delta-9 THC; however, the legality of such substances are currently being fought in court. A substance meets the legal definition of THC under Penalty Group 2/2A only if it contains more than 0.3 percent delta-9 THC concentration.
Possession of any amount of a Penalty Group 2 Controlled Substance is a felony punishable by prison time. Possession means the actual care, custody, control, or management of a controlled substance (Tex. Penal Code § 1.07(a)(39)). The range of punishment is dependent on the weight/ amount a person has in their possession:
The manufacture, delivery, or possession with intent to deliver any amount of a Penalty Group 2 Controlled Substance is any usable amount is a felony punishable by prison time. The Manufacture of a controlled substance refers to the production, preparation, compounding, conversion, or processing of a controlled substance by extraction from substances of natural origin and includes the packaging of the substance or labeling of its container. (Tex. Controlled Substances Act § 481.002(25)); whereas, the delivery of a controlled substance refers to the transfer of a controlled substance to another (Tex. Controlled Substances Act § 481.002(8)). The range of punishment is dependent on the weight or amount and is much more severe than simple possession:
Beyond prison time and fines, a felony drug conviction can have lasting consequences on your life. These people often face difficulty securing employment, obtaining housing, and qualifying for certain professional licenses. Additionally, individuals may lose their right to vote, possess firearms, and face travel restrictions.
These collateral consequences can make it challenging to reintegrate into society after serving a sentence. This is why having an experienced attorney by your side is critical.
Facing drug possession charges in Austin can be overwhelming, but you don’t have to confront this process alone. A qualified drug crimes attorney in Austin can assist in building a solid defense, potentially reducing charges or minimizing penalties. If you need legal help, call us at 512-369-3737 or schedule a free consultation.
David D. White founded the Law Office of David D. White, PLLC and has practiced criminal defense exclusively since 2004. The firm represents clients across Travis, Williamson, Hays, Caldwell, Lee, Coryell, Bell, Burnet, Milam, and Bastrop counties. Three attorneys handle each case as a team — weekly case reviews and shared Clio notes — and by the first consultation, the firm has obtained the Probable Cause Affidavit, read it, and identified the state’s evidentiary weak points.
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This page was written and reviewed by the attorneys at the Law Office of David D. White, PLLC, following our editorial guidelines. The firm has practiced criminal defense exclusively since 2004 across Travis, Williamson, Hays, Caldwell, Lee, Coryell, Bell, Burnet, Milam, and Bastrop County courts. The firm’s three attorneys — David White (managing attorney, practicing criminal defense exclusively since 2004), Kenneth Hines (associate, practicing Caldwell County courts since 2008; former General Counsel to the Texas Senate Jurisprudence Committee, 2010–2012), and Taylor Kacir (associate; former Senior Misdemeanor County Attorney, Bell County Attorney’s Office) — work each case as a team via weekly case reviews and shared Clio notes.
608 West 12th Street, Suite B Austin, TX 78701
706 Rock St, Georgetown, TX 78626
512-369-3737
get directions