[267]*267OPINION
ROBERTS, Judge.
A jury found the appellant guilty of delivery of “a controlled substance, namely Phentermine, an isomer of Methamphetamine.” The court assessed a punishment of eight years’ confinement.
In his first ground of error, the appellant claims phentermine was not intended to be included in the statutory reference to “Methamphetamine, including its .. . isomers .... ” Texas Controlled Substances Act (V.A.C.S. Article 4476 — 15), Section 4.02(b)(6). This argument was rejected in Ex parte Wilson, 588 S.W.2d 905, 907 (Tex.Cr.App.1979).
In his second ground of error the appellant argues that the State’s application of Section 4.02(b)(6) to his conduct denied him liberty without due process of law, in violation of the Fourteenth Amendment to the United States Constitution, because it was a retroactive application of an unforeseeable construction of the statute by this Court in Ex parte Ashcraft, 565 S.W.2d 926 (Tex.Cr.App.1978). Ashcraft was the first authoritative holding that possession of phenter-mine could be punished as possession of “an isomer of methamphetamine.” The appellant’s delivery of phentermine took place several months before this Court’s delivery of Ashcraft. The State has relied entirely on Ashcraft’s construction of the statute, but has not replied to the argument against the retroactive application of it.
The principles of law in this area were set out in Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964). Bouie and another man were convicted of criminal trespass under a statute which made “entry upon the ... lands of another, after notice from the owner or tenant prohibiting such entry,” a misdemeanor. They had not entered “after notice”; they had received no notice that entry was forbidden when they entered, and they were convicted for remaining after receiving notice to leave. After they engaged in these acts, the state supreme court held for the first time that the statute penalized remaining on land after notice to leave as well as entry on land after notice prohibiting entry. City of Charleston v. Mitchell, 239 S.C. 376, 123 S.E.2d 512 (1961), rev’d, 378 U.S. 551, 84 S.Ct. 1901, 12 L.Ed.2d 1033 (1964). The state court applied this holding retroactively to affirm the defendants’ convictions. The Supreme Court held this was a violation of the Due Process Clause, saying (378 U.S. at 352-355, 84 S.Ct. at 1702) (footnote omitted):
“There can be no doubt that a deprivation of the right of fair warning can result not only from vague statutory language but also from an unforeseeable and retroactive judicial expansion of narrow and precise statutory language. As the Court recognized in Pierce v. United States, 314 U.S. 306, 311 [62 S.Ct. 237, 239, 86 L.Ed. 226], ‘judicial enlargement of a criminal act by interpretation is at war with a fundamental concept of the common law that crimes must be defined with appropriate definiteness.’ Even where vague statutes are concerned, it has been pointed out that the vice in such an enactment cannot ‘be cured in a given case by a construction in that very case placing valid limits on the statute,’ for
‘the objection of vagueness is twofold: inadequate guidance to the individual whose conduct is regulated, and inadequate guidance to the triers of fact. The former objection could not be cured retrospectively by a ruling either of the trial court or the appellate court, though it might be cured for the future by an authoritative judicial gloss. * * ’ Freund, The Supreme Court and Civil Liberties, 4 Vand.L.Rev. 533, 541 (1951). * * *
See Amsterdam, Note, 109 U.Pa.L.Rev. 67, 73-74. n. 34.
If this view is valid in the case of a judicial construction which adds a ‘clarifying gloss’ to a vague statute, id., at 73, making it narrower or more definite than its language indicates, it must be a fortio-ri so where the construction unexpectedly broadens a statute which on its face had been definite and precise. Indeed, an unforeseeable judicial enlargement of a [268]*268criminal statute, applied retroactively, operates precisely like an ex post facto law, such as Art. I, § 10, of the Constitution forbids. An ex post facto law has been defined by this Court as one ‘that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action,’ or ‘that aggravates a crime, or makes it greater than it was, when committed.’ Calder v. Bull, [3 U.S.] 3 Dall. 386, 390 [1 L.Ed. 648], If a state legislature is barred by the Ex Post Facto Clause from passing such a law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction. Cf. Smith v. Cahoon, [283] U.S. 553, 565 [51 S.Ct. 582, 586, 75 L.Ed. 1264]. The fundamental principle that ‘the required criminal law must have existed when the conduct in issue occurred,’ Hall, General Principles of Criminal Law (2d ed. 1960), at 58-59, must apply to bar retroactive criminal prohibitions emanating from courts as well as from legislatures. If a judicial construction of a criminal statute is ‘unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue,’ it must not be given retroactive effect. Id., at 61.
“The basic due process concept involved is the same as that which the Court has often applied in holding that an unforeseeable and unsupported state-court decision on a question of state procedure does not constitute an adequate ground to preclude this Court’s review of a federal question. See, e.g., Wright v. Georgia, 373 U.S. 284, 291 [83 S.Ct. 1240, 1245, 10 L.Ed.2d 349]; N.A.C.C.P. v. Alabama, 357 U.S. 449, 456-458 [78 S.Ct. 1163, 1168, 2 L.Ed.2d 1488]; Barr v. City of Columbia, 378 U.S. 146 [84 S.Ct. 1734, 12 L.Ed.2d 766]. The standards of state decisional consistency applicable in judging the adequacy of a state ground are also applicable, we think, in determining whether a state court’s construction of a criminal statute was so unforeseeable as to deprive the defendant of the fair warning to which the Constitution entitles him. In both situations, ‘a federal right turns upon the status of state law as of a given moment in the past — or, more exactly, the appearance to the individual of the status of state law as of that moment * * *.’ 109 U.Pa.L.Rev., supra, at 74, n. 34. When a state court overrules a consistent line of procedural decisions with the retroactive effect of denying a litigant a hearing in a pending case, it thereby deprives him of due process of law ‘in its primary sense of an opportunity to be heard and to defend [his] substantive right.’ Brinkerhoff-Faris Trust & Sav. Co. v. Hill,
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[267]*267OPINION
ROBERTS, Judge.
A jury found the appellant guilty of delivery of “a controlled substance, namely Phentermine, an isomer of Methamphetamine.” The court assessed a punishment of eight years’ confinement.
In his first ground of error, the appellant claims phentermine was not intended to be included in the statutory reference to “Methamphetamine, including its .. . isomers .... ” Texas Controlled Substances Act (V.A.C.S. Article 4476 — 15), Section 4.02(b)(6). This argument was rejected in Ex parte Wilson, 588 S.W.2d 905, 907 (Tex.Cr.App.1979).
In his second ground of error the appellant argues that the State’s application of Section 4.02(b)(6) to his conduct denied him liberty without due process of law, in violation of the Fourteenth Amendment to the United States Constitution, because it was a retroactive application of an unforeseeable construction of the statute by this Court in Ex parte Ashcraft, 565 S.W.2d 926 (Tex.Cr.App.1978). Ashcraft was the first authoritative holding that possession of phenter-mine could be punished as possession of “an isomer of methamphetamine.” The appellant’s delivery of phentermine took place several months before this Court’s delivery of Ashcraft. The State has relied entirely on Ashcraft’s construction of the statute, but has not replied to the argument against the retroactive application of it.
The principles of law in this area were set out in Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964). Bouie and another man were convicted of criminal trespass under a statute which made “entry upon the ... lands of another, after notice from the owner or tenant prohibiting such entry,” a misdemeanor. They had not entered “after notice”; they had received no notice that entry was forbidden when they entered, and they were convicted for remaining after receiving notice to leave. After they engaged in these acts, the state supreme court held for the first time that the statute penalized remaining on land after notice to leave as well as entry on land after notice prohibiting entry. City of Charleston v. Mitchell, 239 S.C. 376, 123 S.E.2d 512 (1961), rev’d, 378 U.S. 551, 84 S.Ct. 1901, 12 L.Ed.2d 1033 (1964). The state court applied this holding retroactively to affirm the defendants’ convictions. The Supreme Court held this was a violation of the Due Process Clause, saying (378 U.S. at 352-355, 84 S.Ct. at 1702) (footnote omitted):
“There can be no doubt that a deprivation of the right of fair warning can result not only from vague statutory language but also from an unforeseeable and retroactive judicial expansion of narrow and precise statutory language. As the Court recognized in Pierce v. United States, 314 U.S. 306, 311 [62 S.Ct. 237, 239, 86 L.Ed. 226], ‘judicial enlargement of a criminal act by interpretation is at war with a fundamental concept of the common law that crimes must be defined with appropriate definiteness.’ Even where vague statutes are concerned, it has been pointed out that the vice in such an enactment cannot ‘be cured in a given case by a construction in that very case placing valid limits on the statute,’ for
‘the objection of vagueness is twofold: inadequate guidance to the individual whose conduct is regulated, and inadequate guidance to the triers of fact. The former objection could not be cured retrospectively by a ruling either of the trial court or the appellate court, though it might be cured for the future by an authoritative judicial gloss. * * ’ Freund, The Supreme Court and Civil Liberties, 4 Vand.L.Rev. 533, 541 (1951). * * *
See Amsterdam, Note, 109 U.Pa.L.Rev. 67, 73-74. n. 34.
If this view is valid in the case of a judicial construction which adds a ‘clarifying gloss’ to a vague statute, id., at 73, making it narrower or more definite than its language indicates, it must be a fortio-ri so where the construction unexpectedly broadens a statute which on its face had been definite and precise. Indeed, an unforeseeable judicial enlargement of a [268]*268criminal statute, applied retroactively, operates precisely like an ex post facto law, such as Art. I, § 10, of the Constitution forbids. An ex post facto law has been defined by this Court as one ‘that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action,’ or ‘that aggravates a crime, or makes it greater than it was, when committed.’ Calder v. Bull, [3 U.S.] 3 Dall. 386, 390 [1 L.Ed. 648], If a state legislature is barred by the Ex Post Facto Clause from passing such a law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction. Cf. Smith v. Cahoon, [283] U.S. 553, 565 [51 S.Ct. 582, 586, 75 L.Ed. 1264]. The fundamental principle that ‘the required criminal law must have existed when the conduct in issue occurred,’ Hall, General Principles of Criminal Law (2d ed. 1960), at 58-59, must apply to bar retroactive criminal prohibitions emanating from courts as well as from legislatures. If a judicial construction of a criminal statute is ‘unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue,’ it must not be given retroactive effect. Id., at 61.
“The basic due process concept involved is the same as that which the Court has often applied in holding that an unforeseeable and unsupported state-court decision on a question of state procedure does not constitute an adequate ground to preclude this Court’s review of a federal question. See, e.g., Wright v. Georgia, 373 U.S. 284, 291 [83 S.Ct. 1240, 1245, 10 L.Ed.2d 349]; N.A.C.C.P. v. Alabama, 357 U.S. 449, 456-458 [78 S.Ct. 1163, 1168, 2 L.Ed.2d 1488]; Barr v. City of Columbia, 378 U.S. 146 [84 S.Ct. 1734, 12 L.Ed.2d 766]. The standards of state decisional consistency applicable in judging the adequacy of a state ground are also applicable, we think, in determining whether a state court’s construction of a criminal statute was so unforeseeable as to deprive the defendant of the fair warning to which the Constitution entitles him. In both situations, ‘a federal right turns upon the status of state law as of a given moment in the past — or, more exactly, the appearance to the individual of the status of state law as of that moment * * *.’ 109 U.Pa.L.Rev., supra, at 74, n. 34. When a state court overrules a consistent line of procedural decisions with the retroactive effect of denying a litigant a hearing in a pending case, it thereby deprives him of due process of law ‘in its primary sense of an opportunity to be heard and to defend [his] substantive right.’ Brinkerhoff-Faris Trust & Sav. Co. v. Hill, 281 U.S. 673, 678 [50 S.Ct. 451, 453, 74 L.Ed. 1107]. When a similarly unforeseeable state-court construction of a criminal statute is applied retroactively to subject a person to criminal liability for past conduct, the effect is to deprive him of due process of law in the sense of fair warning that his contemplated conduct constitutes a crime. Applicable to either situation is this Court’s statement in Brinkerhoff-Faris, supra, that ‘[i]f the result above stated were attained by an exercise of the state’s legislative power, the transgression of the due process clause of the Fourteenth Amendment would be obvious,’ and ‘The violation is none the less clear when that result is accomplished by the state judiciary in the course of construing an otherwise valid * * * state statute.’ Id., 281 U.S. at 679-680 [50 S.Ct. at 453].”
We have recognized and applied these principles of due process. In Ex parte McAtee, 586 S.W.2d 548 (Tex.Cr.App.1979), the State argued that this Court should abandon its consistent rule that a conviction which had been used once to enhance punishment to a mandatory life term could not be used again for that purpose.1 The Court noted that, even if it changed the rule, it would be a denial of due process to apply the new rule retroactively. Id. at 550.
[269]*269The only question, then, is whether our holding in Ex parte Ashcraft, 565 S.W.2d 926 (Tex.Cr.App.1978), that possession of phentermine could be penalized under Section 4.02(b)(6) of the Texas Controlled Substances Act (as an “isomer of methamphetamine”) was so unforeseeable a construction that its retroactive application to the appellant would violate the Due Process Clause. We hold that it was. None of the legislative, executive, or judicial actions before Ashcraft suggested that Section 4.02(b)(6) applied to phentermine. Indeed, those actions indicated that phentermine was controlled quite differently from methamphetamine and its isomers.
Methamphetamine and its isomers have been in Schedule II of the federal Controlled Substances Act (Pub.L. No. 91-513, Title II, 84 Stat. 1236) from the beginning, and they are there now. 21 U.S.C. Section 812(c), Schedule 11(c); 21 C.F.R. Section 1308.12(d)(2) (1981). They have also been in Schedule II of the Texas Controlled Substances Act (V.A.C.S. Article 4476-15) from the beginning, and they are there now. Id Section 2.04(e)(2); Attorney General’s Crime Prevention Newsletter, October, 1981, p. 5.2 The criteria for a substance’s being in Schedule II are that it has a high potential for abuse which may lead to severe psychological or physical dependence, although (unlike substances in Schedule I) it has a currently accepted medical use in the United States. 21 U.S.C. Section 812(b)(2); Texas Controlled Substances Act Section 2.11. Methamphetamine and its isomers are in Penalty Group 1, carrying the most severe penalties, under the Texas Controlled Substances Act, Section 4.02(b)(6).3
Phentermine, on the other hand, initially was not controlled under any schedule. 38 Federal Register 12127 (1973). In Texas it was controlled under the “Dangerous Drugs Act,” V.T.C.S. Article 4476-14, which made its possession a misdemeanor. The Director of the Bureau of Narcotics and Dangerous Drugs of the United States Department of Justice added phentermine to Schedule IY under the Federal Controlled Substances Act. 38 Federal Register 18014 (1973). He had proposed originally to add it to Schedule III, 38 Federal Register 12127 (1973), but eventually added it to Schedule IV because it met the criteria for that schedule: a lower potential for abuse and psychological dependence than the substances in Schedule III, which (in turn) have a lower potential for abuse and dependence than those in Schedule II.4 38 Federal Register 18014 (1973). The Texas Commissioner of Health, who operates under the same criteria,5 followed the federal lead and put phen-termine in Schedule IV under the Texas Act on August 28, 1973. Riddle v. State, 560 S.W.2d 642, 644 n. 2 (Tex.Cr.App.1977). None of these legislative and executive actions could lead one to believe that phenter-mine would be controlled as an isomer of methamphetamine.6
A judicial voice was added to the chorus when, on November 2, 1977, this Court de[270]*270cided that the Commissioner’s addition of phentermine to Schedule IV of the Texas Controlled Substances Act had the effect of removing phentermine from the scope of the “Dangerous Drugs Act”7 but did not create any penalty under the Texas Controlled Substances Act. Riddle v. State, 560 S.W.2d 642. Therefore, the Court held that “[under] the Controlled Substances Act, there is no penalty for the possession or delivery of phentermine.” Id. at 644. Accord, Lumberas v. State, 560 S.W.2d 644 (Tex.Cr.App.1977). This judicial decision certainly would not lead one to believe that there was a penalty for the delivery of phentermine.
So things stood on November 18, 1977, when the appellant delivered 181 capsules of phentermine. The legal landscape was bare of any indication that Section 4.02(b)(6) of the Texas Controlled Substances Act would be construed to include phentermine within the scope of “methamphetamine, including its ... isomers .... ” That construction of the statute in Ex parte Ashcraft, 565 S.W.2d 926 (Tex.Cr.App.1978), must be called unforeseeable. Therefore it would be a denial of due process to apply it retroactively to any act committed before the date of its delivery.
The judgment is reversed, and the cause is remanded to the trial court with directions to dismiss the indictment.