What Penalties Can I Face For Less Than One Gram Possession With No Prior Record?

Penalty Group 1 covers most substances that most people think of as felony drugs. Cocaine, heroin, methamphetamine, they are all covered by Penalty Group 1 under the health and safety code in Texas. If you are charged with possession of less than a gram of a Penalty Group 1 substance, you are charged with a state jail felony. What that means is for a typical offense it’s punishable by six months minimum up to 2 years in a state jail facility and up to a $10,000 fine or also under §12.44(a) of the penal code with punishment in the Travis county jail or in the county jail for up to a year and up to a $4000 fine. Punishment in a state jail correctional facility is always day for day, there is no parole, and there is limited credit for good time. So the minimum sentence that someone could receive for possession of a controlled substance less than a gram is technically 6 months state jail.

However, if you have never been convicted of a felony in the past, there is a provision which actually forces the judge to not give you state jail time but requires them to give you probation. It is a mandatory probation case if you do not have a prior felony conviction. What that means is that even if you go to a jury and you get convicted there, the worst that can happen to you from the jury is that you get placed on probation. Now, you could still be unsuccessful in completing that probation and if you were to be unsuccessful, the judge could certainly sentence you to time in a state jail facility. So it is not that you will absolutely not go to a state jail facility, but worst case scenario, if the prosecutors just gave you what the law says they have to give you or if you went to a jury and you lost badly, that is still the worst possible outcome that could occur: probation.

What that means from a practical perspective or a practical standpoint is that your attorney has a lot of leverage on their side. The prosecutors and judges in most counties will not want to waste one of their precious jury dockets on a possession less than a gram case. They are more interested in trying to have one of the, oftentimes only about 24 jury trials that they have in any given year where it is a violent or more aggravated offense. As a result, the prosecutors will be willing to offer something better than what the mandatory maximum punishment is, of felony probation. It is likely that your attorney will be either able to get the prosecutors to come down to deferred probation meaning felony probation without a felony conviction which you can get sealed, if you are successful in completing it, or down to a misdemeanor even, and that’s what I would be pushing for on possession of less than a gram if you did not have any prior convictions for a felony, I would be pushing for a misdemeanor if your attorney wasn’t able to get it dismissed for some other reason.

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