Texas Drug Crimes: Criminal Defense Overview
Posted on by Michael Lowe.
Drug arrests in the State of Texas can be based upon either federal or state drug laws. These are crimes defined within two completely separate jurisdictions needing distinctly different defense strategies.
From a criminal defense perspective, the outcome can be very different for someone arrested for state drug crimes compared to those who are charged with violating federal drug statutes, even if the same substance is involved. In most instances, it’s better to be arrested by a state or local law enforcement officer for a state drug crime violation than to be charged by federal agents for a federal drug crime.
A prime example of how these two legal jurisdictions work independently involves the current treatment of marijuana under federal law as opposed to state and local law enforcement. Under federal law, marijuana remains an illegal drug included in the “Schedule I” classification of the Controlled Substances Act, defined as drug without any acceptable use along with heroin and LSD.
In Texas, marijuana possession may remain a crime but not result in immediate arrest under the local “cite and release” rule. For instance, in Dallas, someone holding a small amount of pot is not arrested and taken to jail if it’s a Dallas cop who has caught them with the drug, and not a federal DEA agent. Additionally, some forms of medical marijuana are legal today in Texas. See, “Don’t get lost in the weeds. Using legal CBD products in Texas could cost you a job,” written by Mitch Mitchell and published by the Fort Worth Star Telegram on September 19, 2019.
Illegal Substances: the Basis for Drug Arrests in Texas
Before any substance can be the subject of an arrest, it must be defined as being illegal. It’s not a crime to possess (or distribute or manufacture) something that is not prohibited by the government. Authorities have been frustrated by this reality, considering it a “loophole” for criminals use to their advantage when creating and marketing new drugs that don’t meet the criminal definitions.
We’ve discussed this before in:
- Synthetic Drug Busts: Federal Arrests for Fake Pot and Designer Drugs That Are Legal Under State Law;
- Synthetic Drugs Law: Will New Texas Law Succeed In Outlawing Spice, K2, and Other Synthetic Highs?; and
- Is Flakka Legal In Texas? What Dallas Needs To Know About Flakka.
Accordingly, the first defense must be to consider the substance itself. Is it something that is within the chemical definitions provided in either federal or state statutes? Is it an “illegal substance” as defined by law?
Seven (7) Categories of Illegal Substances
Under both state and federal law, there are certain categories of drugs that have been deemed illegal to use, make, manufacture, share, distribute, sell, or possess. Here is how these general categories are defined in the Drug Enforcement Administration (DEA)’s 2018 National Drug Threat Assessment:
- Controlled Prescription Drugs (CPDs): described as the “second most commonly abused substance in the United States,” these “misused pain relievers are most frequently obtained from a friend or relative.”
- Heroin: Heroin alone as well as heroin mixed with fentanyl is readily available in Texas, supplied by Mexican operations that “supply high-purity, low-cost heroin, even as U.S. demand has continued to increase.”
- Fentanyl and Other Synthetic Opioids: Fentanyl and other synthetic opioids are “the most lethal category of opioids used in the United States” with fentanyl being sold both on its own (no mixing with any other controlled substance, like heroin) as well as packaged as counterfeit prescription pills.
- Cocaine: Cocaine use has “rebounded” and the federal government warns past-year cocaine-involved overdose deaths exceeded 2007 benchmark levels.
- Methamphetamine: Methamphetamine remains “prevalent and widely available,” with most of the methamphetamine being produced in Mexico, while seizures of domestic methamphetamine laboratories have “declined steadily for many years.”
- Marijuana: Marijuana remains the “most commonly used illicit drug in the United States.” Mexico remains the “most significant foreign source” for marijuana while domestic marijuana production continues to increase as does marijuana-related products.
- New Psychoactive Substances (NPS): These are new synthetic drugs, such as synthetic cannabinoids and synthetic cathinones usually originating in China, while “traffickers experiment with new and unregulated substances.”
Both the federal government and the State of Texas consider the same substances to be against the public interest and in need of legal oversight as “controlled substances.” However, how these things are treated under the law is not identical under the two jurisdictions.
Under the Comprehensive Drug Abuse Prevention and Control Act of 1970 (“the Controlled Substances Act”), certain drugs are made illegal and are then placed in five classes, or schedules, of severity. Texas law is almost identical in following the federal Controlled Substances Act, but not quite, as seen in Chapter 481 of the Texas Health and Safety Code. The Texas Controlled Substances Act allots different penalties than the federal version, and Texas has a six drug classes, or schedules.
For more, see:
- Conspiracy to Distribute Controlled Substances; and
- Top 10 Things to Know When Defending Texas Charges of Manufacture or Delivery of an Illegal Substance.
The specific drugs are listed within the five federal categories or schedules in the Code of Federal Regulations (C.F.R.), where they are updated annually (a similar drug list is provided under the Texas Controlled Substances Act):
- 21 C.F.R. Part 1308 (controlled substances);
- 21 C.F.R. Part 1300.01 (anabolic steroids); and
- 21 C.F.R. Part 1310 (listed chemicals).
Copycat drugs or unscheduled analogues of controlled substances in the C.F.R. Schedules I or II will be treated as controlled substances in Schedule I pursuant to the Controlled Substance Analogue Enforcement Act.
Federal vs State Focus in Drug Crimes
From a criminal defense lawyer’s viewpoint, it’s important to understand the perspective of the two different jurisdictions and what they are focused upon in their efforts to stop or curtail as illegal activities.
The federal authorities, both as lawmakers as well as prosecutors, investigators, and arresting agents, are mostly concerned with things that are moving throughout the country. It’s a national focus, and accordingly lots of these arrests will deal with drug trafficking and related charges, like money laundering, i.e., things that move across state lines in some way.
For more, read:
- Methamphetamine Trafficking and Federal Sentencing;
- Heroin Trafficking in Texas and Federal Sentencing Guidelines; and
- Money Laundering and Federal Sentencing Guidelines.
Texas legislators, as well as state and local police and the various district attorney’s offices may well focus upon things happening within their locality. They will be more likely to arrest and charge for things like possession of illegal drugs, or manufacturing of controlled substances.
For more, see:
- Drug Free Zones in Texas: Serious Issue for Defendants Arrested for Drug Crimes
- Carfentanil, Fentanyl Analogues, Heroin, China, the Police, and Felony Arrests
- 5 Things To Know About Heroin Arrests If You’re Using Heroin in Dallas
- Heroin in Dallas, Fort Worth, and North Texas: All Kinds of Felony Arrests Are Possible
- Synthetic Drug Arrests in Texas: Police Focusing on K2 and Spice in Dallas
- Methamphetamine in Dallas and North Texas: Expect More Felony Meth Arrests.
Sentencing Concerns in Drug Crime Arrests: Federal vs State
Sentencing someone who has been convicted of a drug crime is not the same in federal prosecutions as it is in state proceedings. This is a critical consideration in any drug crime defense matter.
Federal Sentencing for Drug Crimes
Anyone arrested for violating a federal drug crime law will face punishment as defined by federal law, and this means they will be sentenced under the federal sentencing guidelines. These guidelines have been created to try and make sure that federal drug laws result in the same type of sentence no matter what part of the country the arrest occurred. In doing so, the guidelines act in many ways to limit the federal judge’s ability to exercise his or her discretion in sentencing.
From a criminal defense lawyer’s vantage point, it’s a bigger challenge to fight for someone’s freedom after they have been charged with a federal drug crime if for no other reason than they must face these pre-defined federal sentencing guidelines.
Of paramount concern here, of course, is that in some instances Congress has already decided what sentence must be imposed. Federal mandatory minimum sentencing laws can mean long prison terms for those who are convicted under federal drug charges.
Sentencing In Texas System for Drug Crimes
When someone faces sentencing for a Texas drug crime in a state court, there are still sentencing guidelines for the judge to follow, as defined in the Texas Controlled Substances Act. Here, both minimums and maximums are given, but the judge is allowed to decide the sentence within those two boundaries.
For instance, Texas Drug Penalty Group 1 (cocaine, heroin, methamphetamine, etc.) comes with the harshest sentencing. However, there is more flexibility in sentencing under state law than in the federal system (e.g., probation may be available in a state proceeding where it would not be under federal law).
OFFENSE: MANUFACTURE OR DELIVERY OF SUBSTANCE IN PENALTY GROUP 1. (a) Except as authorized by this chapter, a person commits an offense if the person knowingly manufactures, delivers, or possesses with intent to deliver a controlled substance listed in Penalty Group 1.
(b) An offense under Subsection (a) is a state jail felony if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, less than one gram.
(c) An offense under Subsection (a) is a felony of the second degree if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, one gram or more but less than four grams.
(d) An offense under Subsection (a) is a felony of the first degree if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, four grams or more but less than 200 grams.
(e) An offense under Subsection (a) is punishable by imprisonment in the Texas Department of Criminal Justice for life or for a term of not more than 99 years or less than 10 years, and a fine not to exceed $100,000, if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, 200 grams or more but less than 400 grams.
(f) An offense under Subsection (a) is punishable by imprisonment in the Texas Department of Criminal Justice for life or for a term of not more than 99 years or less than 15 years, and a fine not to exceed $250,000, if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, 400 grams or more.
Note the importance of the prosecution proving the exact weight, to the gram, for the offense. The defense strategy will include a careful evaluation of these measurements.
Other Consequences of Drug Crime Arrests: Federal or State
Of course, in both instances the criminal defense lawyer must consider other consequences facing anyone charged with drug crimes, whether in state or federal court. Having a drug arrest, much less a conviction, on someone’s record can impact their lives forever.
They may find it hard to get a job. They may be denied a lease or a mortgage loan. Scholarships can be taken away. In any instance where someone is required to give a background check, the drug charge may block, bar, or taint that individual’s ability to move forward in life.
Particular Individuals Targeted for Drug Arrests in Texas
Of course, the DEA and Texas law enforcement remain extremely concerned about the activities of Mexican Drug Cartels and organized gangs who operate large and successful illegal drug businesses in the Lone Star State.
Cartels, Gangs, and Known Criminal Organizations
From the 2018 Drug Threat Assessment, we know the DEA considers Mexican Drug Cartels (known as “TCOs or “Transnational Criminal Organizations”) to be the “greatest criminal drug threat to the United States; no other group is currently positioned to challenge them.” Other TCOs include organizations based in Colombia, Venezuela, and the Dominican Republic as well as Hong Kong and China.
The federal government is also focused upon various gangs: those operating at a national level (think outlaw motorcycle clubs or the Latin Kings) as well as gangs operating in a specific urban neighborhood and those based within the prison system, e.g., Dallas’ YNB Stretch Gang (Report, page 107-8).
Doctors in Texas
However, there are particular groups of people in Texas that need to be particularly aware of the likelihood they can be investigated for drug crime violations – and even public awareness that someone is being investigated for drug crimes can have harm someone’s reputation, relationships, and livelihood.
For instance, physicians, doctors, and pharmacists in Texas need to know that they may end up as defendants facing drug crime charges, particularly as the misuse of prescription opioids continues at epidemic levels in this country. High school and college students may also be vulnerable to drug crime arrests. See:
- Juvenile Heroin Arrests: When Your Child is Busted for Heroin in Texas
- The 2018 Boom in Physician Arrests: Characteristics of the Arrested Doctor
- The New DEA Drug Report: Drug Cartels, Doctors, and Health Care Fraud
Defense in Texas Drug Crime Charges
Anyone facing a drug charge under either state or federal law is dealing with a very serious situation. This is particularly true if federal authorities are involved, since these federal prosecutions may well combine the drug charges with other serious felonies like conspiracy, RICO violations, and/or money laundering.
Drug cases can mean serious prison time, particularly under federal sentencing in federal cases and especially in state cases when arrests involve drugs near “drug-free zones” like a local public school.
Even the gut call or suspicion that you are being investigated for drug crime charges warrants a call to an experienced and aggressive drug crimes attorney. These cases are often complicated and prosecutors push for convictions. The faster a criminal defense investigation can begin and a strategy built the better for the accused (or the person worried they will be formally accused).
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