§ 481.116 — OFFENSE: POSSESSION OF SUBSTANCE IN PENALTY GROUP 2.

Sec. 481.116. OFFENSE: POSSESSION OF SUBSTANCE IN PENALTY GROUP 2. (a) 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.
(b) An offense under Subsection (a) 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.
(c) An offense under Subsection (a) is 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.
(d) An offense under Subsection (a) 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 400 grams.
(e) An offense under Subsection (a) is a felony of the first degree 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.
(f) It is a defense to prosecution for an offense punishable under Subsection (b) that the actor:
(1) was the first person to request emergency medical assistance in response to the possible overdose of another person and:
(A) made the request for medical assistance during an ongoing medical emergency;
(B) remained on the scene until the medical assistance arrived; and
(C) cooperated with medical assistance and law enforcement personnel; or
(2) was the victim of a possible overdose for which emergency medical assistance was requested, by the actor or by another person, during an ongoing medical emergency.
(g) The defense to prosecution provided by Subsection (f) is not available if:
(1) at the time the request for emergency medical assistance was made:
(A) a peace officer was in the process of arresting the actor or executing a search warrant describing the actor or the place from which the request for medical assistance was made; or
(B) the actor is committing another offense, other than an offense punishable under Section 481.115 (b), 481.1151 (b)(1), 481.1161 (b)(1) or (2), 481.117 (b), 481.118 (b), or 481.121 (b)(1) or (2), or an offense under Section 481.119 (b), 481.125 (a), 483.041 (a), or 485.031 (a);
(2) the actor has been previously convicted of or placed on deferred adjudication community supervision for an offense under this chapter or Chapter 483 or 485 ;
(3) the actor was acquitted in a previous proceeding in which the actor successfully established the defense under that subsection or Section 481.115 (g), 481.1151 (c), 481.1161 (c), 481.117 (f), 481.118 (f), 481.119 (c), 481.121 (c), 481.125 (g), 483.041 (e), or 485.031 (c); or
(4) at any time during the 18-month period preceding the date of the commission of the instant offense, the actor requested emergency medical assistance in response to the possible overdose of the actor or another person.
(h) The defense to prosecution provided by Subsection (f) does not preclude the admission of evidence obtained by law enforcement resulting from the request for emergency medical assistance if that evidence pertains to an offense for which the defense described by Subsection (f) is not available.

Legislative History

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 2.02, eff. Sept. 1, 1994. Amended by: Acts 2009, 81st Leg., R.S., Ch. 87 (S.B. 1969 ), Sec. 25.101, eff. September 1, 2009. Acts 2021, 87th Leg., R.S., Ch. 808 (H.B. 1694 ), Sec. 4, eff. September 1, 2021. Acts 2023, 88th Leg., R.S., Ch. 910 (H.B. 6 ), Sec. 11, eff. September 1, 2023.