I am William Patrick Delgado, a criminal defense attorney in Corpus Christi. I defend people charged with drug possession in Nueces County, and I spent seven years as a Nueces County Assistant District Attorney before I moved to the defense side of the courtroom. On this page I explain, in plain terms, how Texas sorts drugs into penalty groups, what the punishment ranges are, what the State must actually prove, and what options besides a conviction can look like.
How Texas sorts drugs: penalty groups
Texas does not use the federal drug schedules. Under Texas Health and Safety Code Chapter 481, drugs are sorted into Penalty Groups 1 through 4, plus a separate set of rules for marijuana:
- Penalty Group 1 — heroin, cocaine, methamphetamine, oxycodone, hydrocodone (in its pure form), and similar drugs.
- Penalty Group 1-B — fentanyl and its derivatives (Health and Safety Code §481.1022).
- Penalty Group 1-A — LSD.
- Penalty Group 2 — ecstasy (MDMA), PCP, psilocybin mushrooms, synthetic cannabinoids, and similar drugs.
- Penalty Group 2-A — synthetic cannabinoids and similar compounds, charged under their own section.
- Penalty Group 3 — Xanax (alprazolam), Valium (diazepam), and other prescription sedatives, and certain hydrocodone combinations.
- Penalty Group 4 — mixtures containing limited amounts of codeine, morphine, or opium, such as some cough syrups.
- Marijuana — charged under its own section, §481.121, not under the penalty groups.
The group matters because it sets the punishment range, and because the same weight means very different things in different groups.
Possession punishment ranges — Penalty Groups 1 and 1-B
Under Health and Safety Code §481.115, possession of a Penalty Group 1 or 1-B substance is punished by weight:
- Less than 1 gram — state jail felony. 180 days to 2 years in a state jail facility and a fine of up to $10,000.
- 1 gram to less than 4 grams — third-degree felony. 2 to 10 years in prison and a fine of up to $10,000.
- 4 grams to less than 200 grams — second-degree felony. 2 to 20 years in prison and a fine of up to $10,000.
- 200 grams to less than 400 grams — first-degree felony. 5 to 99 years or life in prison and a fine of up to $10,000.
- 400 grams or more — enhanced first-degree felony. 10 to 99 years or life in prison and a fine of up to $100,000.
The other groups follow a similar ladder with their own thresholds. For example, under §481.116, Penalty Group 2 possession of less than 1 gram is a state jail felony, 1 to less than 4 grams is a third-degree felony, and the ranges climb from there. Under §481.117, Penalty Group 3 possession of less than 28 grams is a Class A misdemeanor, and 28 to less than 200 grams is a third-degree felony. Under §481.118, Penalty Group 4 possession of less than 28 grams is a Class B misdemeanor.
Marijuana, under §481.121: 2 ounces or less is a Class B misdemeanor; more than 2 ounces to 4 ounces is a Class A misdemeanor; more than 4 ounces to 5 pounds is a state jail felony; more than 5 pounds to 50 pounds is a third-degree felony; more than 50 pounds to 2,000 pounds is a second-degree felony; more than 2,000 pounds is a first-degree felony.
One warning about weight: the State weighs the whole mixture, not just the pure drug. A bag of methamphetamine cut with filler is weighed with the filler included, and a bottle of cough syrup is weighed as the whole liquid. That is why an independent look at the lab report — what was actually tested, and how — matters in almost every possession case.
What "possession" actually requires the State to prove
Possession is not just "the drugs were near you." Under Texas law, the State must prove that you knowingly possessed the substance — that you exercised care, custody, or control over it and knew it was there. When drugs are found in a car with several people, in a shared apartment, or in a bag that is not yours, that question becomes the whole case.
Texas courts look at "affirmative links" — facts connecting the person to the drugs beyond mere presence: Were they in plain view? Were they in a place you controlled, like your pocket or your locked glove box? Were your fingerprints or DNA on the packaging? Did you make statements about them? Did you act nervous, or try to hide or discard something? Did you own or drive the car? No single link decides it; the question is whether the links, taken together, show knowing possession rather than coincidence.
The search matters just as much. If officers searched your car, your home, or your person without a warrant, without consent, and without a lawful exception, the evidence can be challenged under the Fourth Amendment and Texas Code of Criminal Procedure art. 38.23, which excludes evidence obtained in violation of the law. Traffic stops, pat-downs, and "consent" searches all have rules, and officers do not always follow them.
Options besides a conviction
A possession charge does not always end in a conviction, and the alternatives matter because a drug conviction follows you — into employment, housing, licensing, and any future case, where a prior conviction raises the punishment range.
- Dismissal. If the search was unlawful, the lab work does not hold up, or the State cannot prove knowing possession, the case can be dismissed outright.
- Reduction. A felony weight can sometimes be negotiated down — for example, where the lab report shows a lower usable quantity than the arrest report claimed, or where the substance turns out to be a different penalty group than charged.
- Deferred adjudication. Under Code of Criminal Procedure art. 42A.101, the judge can defer a finding of guilt and place you on community supervision. Complete it successfully and the case is dismissed without a conviction — though it is not the same as an expunction, and it still appears on some records.
- Pretrial diversion. Some Nueces County cases are eligible for pretrial diversion programs, where completing conditions — classes, community service, clean tests — leads to dismissal before a charge is ever filed as a conviction.
- Drug court and treatment programs. Nueces County has treatment-oriented dockets for people whose cases are driven by substance use. These programs are demanding, but for the right person they are the difference between a conviction and a clean record.
None of these is automatic, and none is guaranteed. Eligibility depends on the charge, the weight, your record, and the prosecutor and judge assigned to the case. What is guaranteed is that the earlier an attorney gets involved, the more of these doors are still open — diversion, in particular, is often decided before the first court setting.
How possession cases are handled in Nueces County
A misdemeanor possession case is filed in one of Nueces County's County Courts at Law; a felony goes to a District Court. The case moves through arraignment, pretrial settings, and, if it is not resolved, trial. At each stage, the questions are the same:
- Was the stop and search lawful? If not, the evidence may be excluded entirely.
- What does the lab actually show? The lab report — substance, weight, purity, and chain of custody — is evidence, not gospel, and it can be challenged.
- Can the State prove knowing possession? In shared cars and shared homes, this is often the weakest part of the State's case.
- Is there a resolution short of conviction? Diversion, deferred adjudication, or a reduction should be explored before any plea is entered.
I have handled these cases from both sides of the courtroom in this county — seven years prosecuting in the Nueces County District Attorney's Office, and since then defending people as a founding partner of my own firms and, since February 2024, in my solo practice. I know how possession cases are charged, negotiated, and tried here, because I have done the charging and the negotiating myself.
Frequently asked questions
Is marijuana possession still a crime in Texas?
Yes. Texas has not legalized recreational marijuana. Possession of 2 ounces or less is a Class B misdemeanor, and the penalties climb with weight. Hemp and CBD products create real confusion — the difference between legal hemp and illegal marijuana is a lab measurement (0.3% THC by dry weight) — and that confusion is itself a defense issue in some cases.
Can I be charged if the drugs were in someone else's car or bag?
You can be charged, but the State still has to prove you knowingly possessed them. Mere presence in the same car or house is not enough under Texas law; the State needs affirmative links connecting you to the drugs. This is one of the most common defenses in possession cases.
What if I had a prescription for the drug?
A valid prescription is a defense to possession of a controlled substance — but it has to be your prescription, current, and for the substance and amount you had. A prescription belonging to someone else, or an expired prescription, does not protect you.
Will a possession charge stay on my record forever?
A conviction does, in most cases. But a dismissal, a successful deferred adjudication, or a completed diversion can leave you in a very different position — and some outcomes can later support an order of nondisclosure or, in limited cases, an expunction. The outcome of the first case shapes what is possible later, which is why the resolution matters as much as the charge.
What is the difference between possession and possession with intent to deliver?
Intent to deliver is a separate, more serious charge under Health and Safety Code §§481.112–481.114. The State typically infers intent from quantity, packaging (individual baggies, scales), large amounts of cash, or observations of sales. The same drugs can be charged either way, and the difference is often the whole case — which is why quantity and packaging evidence gets scrutinized closely.
Should I talk to the police about where the drugs came from?
Talk to a lawyer first. Statements about ownership, knowledge, or source are the evidence that turns a weak possession case into a strong one. Investigators are allowed to ask; you are allowed to ask for a lawyer before answering.
Talk to me about your drug possession case
Consultations are free. We can meet by phone, by video, or in person at my Corpus Christi office. If you were arrested on a possession charge, the earliest days matter most — diversion decisions and lab challenges are both time-sensitive.
William Patrick Delgado, Attorney at Law — Nueces County criminal defense
Last reviewed: November 13, 2026
This page is general information about Texas law, not legal advice about your specific case. Every case turns on its own facts; talk to an attorney about yours.