This guide is an introduction to Texas heroin laws and penalties. Texas law prohibits the possession, delivery, and manufacture of heroin.
Possession of Heroin – Texas Health and Safety Code 481.115
It is unlawful in Texas to possess any amount of heroin. “Possession” is a legal term and includes having “actual care, custody, control, or management.”
The defendant must intentionally or knowingly possess heroin. A defendant may avoid a conviction if they do not intend or know they possess heroin.
Punishment ranges depend on the amount of heroin the defendant possesses.
Possession of less than 1 gram of heroin is a state jail felony. The punishment range for a state jail felony is six months to two years in prison. Deferred adjudication and regular probations are also options. Suppose this is a defendant’s first state jail felony, and they possess a state jail felony amount of heroin. In that case, they must receive a probated sentence.
Possession of between 1 gram and 4 grams is a third-degree felony. Between 4 grams and 200 grams is a second-degree felony, and between 200 grams and 400 grams is a first-degree felony.
A court can punish a defendant possessing more than 400 grams of heroin with a sentence of 10 and 99 years in prison and $100,000 in fines.
Delivery of Heroin – Texas Health and Safety Code 481.112
“Deliver” also has a legal definition. According to the Texas Health and Safety Code, delivery means to “transfer, actually or constructively, to another a controlled substance, counterfeit substance, or drug paraphernalia, regardless of whether there is an agency relationship.”
The delivery may be actual, as in a hand-to-hand exchange, or constructive. Constructive delivery or transfer occurs when the defendant commits an act that helps or enables another person to come into possession of heroin. For example, a defendant who leaves heroin somewhere for another person to go and pick up has constructively delivered the heroin.
Prison sentences correspond to the weight of the heroin the defendant delivered. For less than one gram, the defendant may face 180 days to 2 years in jail and up to $10,000 in fines. Suppose the evidence showed the defendant delivered more than 400 grams of heroin. The punishment range is life imprisonment or imprisonment between 15 and 99 years and a $250,000 fine.
Manufacture of Heroin – Texas Health and Safety Code 481.112
Like “possession” and “delivery,” Texas law defines “manufacturing.” “Manufacturing” includes production, preparation, propagation, compounding, conversion, processing, creating, packaging, or labeling a package of heroin. “Creating” heroin can refer to either creating heroin from natural or chemical substances.
Punishment for manufacturing offenses also follows the weight of the heroin. The penalties that apply to delivery offenses also apply to manufacturing offenses. Manufacturing less than 1 gram of heroin will result in 180 days to 2 years in jail and up to $10,000 in fines, whereas manufacturing more than 400 grams of heroin can result in life imprisonment or imprisonment between 15 and 99 years and a $250,000 fine.
Enhancements to Texas Heroin Offenses
A defendant could receive an enhanced sentence if they conducted the heroin-related activity for money or depending on where the activity occurred. Criminal activity on school property, property leased or owned by higher education centers, within 1,000 feet of school property, or on a school bus can result in the elevation of a felony offense from one level to another and the imposition of longer prison sentences and higher fines.
Defending Against Heroin Offenses
Most evidence relevant to heroin offense prosecutions comes from law enforcement searches and surveillance. The U.S. Constitution and Texas constitutions limit law enforcement actions that violate a defendant’s rights or the law. Such violations may result in excluding any evidence discovered for use in criminal court.
One of the most critical limitations of law enforcement activities is protecting individual citizens from unreasonable searches. This limitation usually requires law enforcement officers to present a judge with evidence establishing probable cause and having that judge issue a search warrant. There are a few exceptions to this requirement, such as where officers have information that a suspect is actively destroying heroin or related evidence. Still, these apply to only a few narrow circumstances.
The Fourth Amendment of the U.S. Constitution requires law enforcement officers to have “reasonable suspicion” before they can pull your car over. Reasonable suspicion means that you committed, are about to commit, or are in the process of committing a crime. They must have more than a “hunch” that criminal activity is afoot before they stop your vehicle. They must be able to articulate evidence giving rise to probable cause before searching your car (unless, of course, you consent to the search).
Under the exclusionary doctrine, a judge can exclude heroin and related evidence obtained from illegal or unconstitutional law enforcement activity from a later criminal proceeding. The possible exclusion of evidence discourages law enforcement officers from violating the law or individuals’ rights in criminal investigations.
The other major defense area is how the government ties the defendant to the drugs. For example, in a possession case, there may be a defense if officers find the heroin in a house or car with multiple occupants. The State will have to prove that each defendant exercised joint custody, care, and control of the heroin.
Contact me for a free case review if you are charged with possessing, delivering, or manufacturing heroin in Comal County or other Central Texas counties such as Hays County, Guadalupe County, Travis County, or Bexar County.
