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Alcohol and Intoxication Offenses

Alcohol and Intoxication offenses in Texas are primarily found in Chapter 49 of the Texas Penal Code.  Drug offenses are primarily found in Chapter 481 of the Texas Health and Safety Code.  However, there is some overlap between these two areas and some statutes are also found in the Texas Alcoholic Beverage Code.

The paragraphs below highlight the basic elements of these crimes. The full text of the laws can be found by following the links provided. These laws are often quite complicated and contain very specific and detailed definitions, presumptions, enhancements, and exceptions. If you have been charged with one of these crimes, call my office at 888-403-0383 and we can discuss all the details of how the law applies in your specific situation.

Drug and Alcohol offenses include:

Public Intoxication (PC 49.02)

  • A person commits an offense if the person appears in a public place while intoxicated to the degree that the person may endanger the person or another.

Possession of Alcoholic Beverage in a Motor Vehicle (PC 49.031)

  • A person commits an offense if the person knowingly possesses an open container in a passenger area of a motor vehicle that is located on a public highway, regardless of whether the vehicle is being operated or is stopped or parked.  Possession by a person of one or more open containers in a single criminal episode is a single offense.

Driving While Intoxicated (PC 49.04)

  • A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.

Driving While Intoxicated With Child Passenger (PC 49.045)

  • A person commits an offense if:
    • the person is intoxicated while operating a motor vehicle in a public place; and
    • the vehicle being operated by the person is occupied by a passenger who is younger than 15 years of age.

Flying While Intoxicated (PC 49.05)

  • A person commits an offense if the person is intoxicated while operating an aircraft.

Boating While Intoxicated (PC 49.06)

  • A person commits an offense if the person is intoxicated while operating a watercraft.

Assembling or Operating an Amusement Ride While intoxicated (PC 49.065)

  • A person commits an offense if the person is intoxicated while operating an amusement ride or while assembling a mobile amusement ride.

Intoxication Assault (PC 49.07)

  • A person commits an offense if the person, by accident or mistake:
    • while operating an aircraft, watercraft, or amusement ride while intoxicated, or while operating a motor vehicle in a public place while intoxicated, by reason of that intoxication causes serious bodily injury to another; or
    • as a result of assembling a mobile amusement ride while intoxicated causes serious bodily injury to another.

Intoxication Manslaughter (PC 49.08)

  • A person commits an offense if the person:
    • operates a motor vehicle in a public place, operates an aircraft, a watercraft, or an amusement ride, or assembles a mobile amusement ride; and
    • is intoxicated and by reason of that intoxication causes the death of another by accident or mistake.

Driving or Operating Watercraft Under the Influence of Alcohol by Minor (ABC 106.041)

  • A minor commits an offense if the minor operates a motor vehicle in a public place, or a watercraft, while having any detectable amount of alcohol in the minor's system.

Operation of Stash House (PC 20.07)

  • A person commits an offense if the person knowingly:
    • uses or permits another to use any real estate, building, room, tent, vehicle, boat, or other property owned by the person or under the person's control to commit an offense or to facilitate the commission of an offense under Section 20.05, 20.06, 20A.02, 20A.03, 43.04, or 43.05; or
    • rents or leases any property to another, intending that the property be used as described by Subdivision (1).

Manufacture or Delivery of Substance in Penalty Group 1 (HSC 481.112)

  • 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.
  • An offense under this section 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.
    • 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.
    • 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.
    • 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.
    • 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.

Manufacture or Delivery of Substance in Penalty Group 1-A (HSC 481.1121)

  • Except as provided 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-A.
  • An offense under this section is:
    • a state jail felony if the number of abuse units of the controlled substance is fewer than 20;
    • a felony of the second degree if the number of abuse units of the controlled substance is 20 or more but fewer than 80;
    • a felony of the first degree if the number of abuse units of the controlled substance is 80 or more but fewer than 4,000; and
    • 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 number of abuse units of the controlled substance is 4,000 or more.

Manufacture or Delivery of Substance in Penalty Group 2 or 2-A (HSC 481.113)

  • 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 2 or 2-A.
  • An offense under this section 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.
    • 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.
    • 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 400 grams.
    • 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, 400 grams or more.

Manufacture or Delivery of Substance in Penalty Group 3 or 4 (HSC 481.114)

  • 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 3 or Penalty Group 4.
  • An offense under this section 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 28 grams.
    • 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, 28 grams or more but less than 200 grams.
    • 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, 200 grams or more but less than 400 grams.
    • 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 any adulterants or dilutants, 400 grams or more.

Possession of Penalty Group 1 Substances (HSC 481.115)

  • Except as authorized by this chapter, a person commits an offense if the person knowingly or intentionally possesses a controlled substance listed in Penalty Group 1, unless the person obtained the substance directly from or under a valid prescription or order of a practitioner acting in the course of professional practice.
  • An offense under this section is:
    • a state jail felony if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, less than one gram.

    • a felony of the third degree if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, one gram or more but less than four grams.
    • is a felony of the second degree if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, four grams or more but less than 200 grams.
    • a felony of the first degree if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, 200 grams or more but less than 400 grams.
    • 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 possessed is, by aggregate weight, including adulterants or dilutants, 400 grams or more.

Possession of Penalty Group 1-A Substances (HSC 481.1151)

  • Except as provided by this chapter, a person commits an offense if the person knowingly possesses a controlled substance listed in Penalty Group 1-A.
  • An offense under this section is:

    • a state jail felony if the number of abuse units of the controlled substance is fewer than 20;
    • a felony of the third degree if the number of abuse units of the controlled substance is 20 or more but fewer than 80;
    • a felony of the second degree if the number of abuse units of the controlled substance is 80 or more but fewer than 4,000;
    • a felony of the first degree if the number of abuse units of the controlled substance is 4,000 or more but fewer than 8,000; and
    • 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 number of abuse units of the controlled substance is 8,000 or more.

Possession of Penalty Group 2 Substances (HSC 481.116)

  • Except as authorized by this chapter, a person commits an offense if the person knowingly or intentionally possesses a controlled substance listed in Penalty Group 2, unless the person obtained the substance directly from or under a valid prescription or order of a practitioner acting in the course of professional practice.
  • An offense under this section is:
    • a state jail felony if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, less than one gram.
    • a felony of the third degree if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, one gram or more but less than four grams.
    • a felony of the second degree if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, four grams or more but less than 400 grams.
    • 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 five years, and a fine not to exceed $50,000, if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, 400 grams or more.

Possession of Penalty Group 2-A Substances (HSC 481.1161)

  • Except as authorized by this chapter, a person commits an offense if the person knowingly possesses a controlled substance listed in Penalty Group 2-A, unless the person obtained the substance directly from or under a valid prescription or order of a practitioner acting in the course of professional practice.
  • An offense under this section is:
    • a Class B misdemeanor if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, two ounces or less;
    • a Class A misdemeanor if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, four ounces or less but more than two ounces;
    • a state jail felony if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, five pounds or less but more than four ounces;
    • a felony of the third degree if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, 50 pounds or less but more than 5 pounds;
    • a felony of the second degree if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, 2,000 pounds or less but more than 50 pounds; and
    • 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 5 years, and a fine not to exceed $50,000, if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, more than 2,000 pounds.

Possession of Penalty Group 3 Substances (HSC 481.117)

  • Except as authorized by this chapter, a person commits an offense if the person knowingly or intentionally possesses a controlled substance listed in Penalty Group 3, unless the person obtains the substance directly from or under a valid prescription or order of a practitioner acting in the course of professional practice.
  • An offense under this section is:
    • a Class A misdemeanor if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, less than 28 grams.
    • a felony of the third degree if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, 28 grams or more but less than 200 grams.
    • a felony of the second degree, if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, 200 grams or more but less than 400 grams.
    • 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 five years, and a fine not to exceed $50,000, if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, 400 grams or more.

Possession of Penalty Group 4 Substances (HSC 481.118)

  • A person commits an offense if the person knowingly or intentionally possesses a controlled substance listed in Penalty Group 4, unless the person obtained the substance directly from or under a valid prescription or order of a practitioner acting in the course of practice.
  • An offense under this section is:
    • a Class B misdemeanor if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, less than 28 grams.
    • a felony of the third degree if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, 28 grams or more but less than 200 grams.
    • a felony of the second degree, if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, 200 grams or more but less than 400 grams.
    • 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 five years, and a fine not to exceed $50,000, if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, 400 grams or more.

 Manufacture, Delivery, or Possession of Miscellaneous Substance (HSC 481.119)

  • A person commits an offense if the person knowingly manufactures, delivers, or possesses with intent to deliver a controlled substance listed in a schedule by an action of the commissioner under this chapter but not listed in a penalty group.  An offense under this subsection is a Class A misdemeanor, except that the offense is:
    • a state jail felony, if the person has been previously convicted of an offense under this subsection; or
    • a felony of the third degree, if the person has been previously convicted two or more times of an offense under this subsection.
  • A person commits an offense if the person knowingly or intentionally possesses a controlled substance listed in a schedule by an action of the commissioner under this chapter but not listed in a penalty group.  An offense under this subsection is a Class B misdemeanor.

Delivery of Marihuana (Marijuana) (HSC 481.120)

  • Except as authorized by this chapter, a person commits an offense if the person knowingly or intentionally delivers marihuana.
  • An offense under this section is:
    • a Class B misdemeanor if the amount of marihuana delivered is one-fourth ounce or less and the person committing the offense does not receive remuneration for the marihuana;
    • a Class A misdemeanor if the amount of marihuana delivered is one-fourth ounce or less and the person committing the offense receives remuneration for the marihuana;
    • a state jail felony if the amount of marihuana delivered is five pounds or less but more than one-fourth ounce;
    • a felony of the second degree if the amount of marihuana delivered is 50 pounds or less but more than five pounds;
    • a felony of the first degree if the amount of marihuana delivered is 2,000 pounds or less but more than 50 pounds; and
    • 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 marihuana delivered is more than 2,000 pounds.

Possession of Marihuana (Marijuana) (HSC 481.121)

  • Except as authorized by this chapter, a person commits an offense if the person knowingly or intentionally possesses a usable quantity of marihuana.
  • An offense under this section is:
    • a Class B misdemeanor if the amount of marihuana possessed is two ounces or less;
    • a Class A misdemeanor if the amount of marihuana possessed is four ounces or less but more than two ounces;
    • a state jail felony if the amount of marihuana possessed is five pounds or less but more than four ounces;
    • a felony of the third degree if the amount of marihuana possessed is 50 pounds or less but more than 5 pounds;
    • a felony of the second degree if the amount of marihuana possessed is 2,000 pounds or less but more than 50 pounds; and
    • 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 5 years, and a fine not to exceed $50,000, if the amount of marihuana possessed is more than 2,000 pounds.

Delivery of Controlled Substance or Marihuana (Marijuana) to Child (HSC 481.122)

  • A person commits an offense if the person knowingly delivers a controlled substance listed in Penalty Group 1, 1-A, 2, or 3 or knowingly delivers marihuana and the person delivers the controlled substance or marihuana to a person:
    • who is a child;
    • who is enrolled in a public or private primary or secondary school; or
    • who the actor knows or believes intends to deliver the controlled substance or marihuana to a person described by Subdivision (1) or (2).

Possession or Transport of Certain Chemicals With Intent to Manufacture Controlled Substance (HSC 481.124)

  • A person commits an offense if, with intent to unlawfully manufacture a controlled substance, the person possesses or transports:
    • anhydrous ammonia;
    • an immediate precursor; or
    • a chemical precursor or an additional chemical substance named as a precursor by the director under Section 481.077(b)(1).

Possession or Transport of Anhydrous Ammonia; Use of or Tampering With Equipment (HSC 481.1245)

  • A person commits an offense if the person:
    • possesses or transports anhydrous ammonia in a container or receptacle that is not designed or manufactured to hold or transport anhydrous ammonia;
    • uses, transfers, or sells a container or receptacle that is designed or manufactured to hold anhydrous ammonia without the express consent of the owner of the container or receptacle; or
    • tampers with equipment that is manufactured or used to hold, apply, or transport anhydrous ammonia without the express consent of the owner of the equipment.

Possession or Delivery of Drug Paraphernalia (HSC 481.125)

  • A person commits an offense if the person knowingly or intentionally uses or possesses with intent to use drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, or conceal a controlled substance in violation of this chapter or to inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of this chapter.
  •  A person commits an offense if the person knowingly or intentionally delivers, possesses with intent to deliver, or manufactures with intent to deliver drug paraphernalia knowing that the person who receives or who is intended to receive the drug paraphernalia intends that it be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, or conceal a controlled substance in violation of this chapter or to inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of this chapter.
  • A person commits an offense if the person commits an offense under Subsection (b), is 18 years of age or older, and the person who receives or who is intended to receive the drug paraphernalia is younger than 18 years of age and at least three years younger than the actor.

If you would like to discuss your case with an attorney, call my office at 888-403-0383 for a free consultation, or you can fill out THIS FORM and I will review the information and call you to discuss your case.

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