|
Unseen
Consequences
of
Frequently-Prosecuted Drug Offenses
Excerpt from Chapter III of Texas
Punishment:
A Source Book for Defense Attorneys
by Keith S. Hampton and Philip A.
Wischkaemper
1.
Offenses involving drugs other than
Marijuana.
A.
Class B Misdemeanors
Offense:
Possession of Controlled Substance
(Tex. Health & Safety Code §481.112
- §48l.12l) - Class B Misdemeanor
Punishment: Up to 180 Days in a county jail
and a $2000.00 fine
Probation: Class B misdemeanors
can receive probation for a maximum
of 2 years (Tex.CodeCrim.Pro.42.12
§3(b))
Effect on
Driver’s License:
Adult: license suspended for 180
days (Tex. Transportation Code
§521.372)
Minor: license suspended for 1 year
(Tex. Family Code §54.042(a)(2))
Deportation & Exclusion: 8 USCS
§1227(a)(2)(i):
classes of deportable aliens
include:
Any alien who at any
time after admission has been
convicted of a violation of (or a
conspiracy or attempt to violate)
any law or regulation of a State,
the United States, or a foreign
country relating to a controlled
substance (as defined in section 102
of the Controlled Substances Act (21
U.S.C. 802)), other than a single
offense involving possession for
one’s own use of 30 grams or less of
marijuana, is deportable.
Drug abusers and
addicts. Any alien who is, or at
any time after admission has been, a
drug abuser or addict is deportable.
Other Consequences:
Is disqualified from
obtaining a concealed weapon license
while charged or if convicted. Tex.
Gov’t.
Code §411.172(3)
May not ship, transport,
or receive a firearm or ammunition,
or is otherwise in violation of
federal law (max. sentence of 10
years in prison and $5,000.00 fine).
18 USCS §922(g) and (n)
Generally, a defendant
convicted of a felony or misdemeanor
offense may lose the right to
receive or continue to hold a
business or professional license
issued by the state. See generally
Tex. 0cc. Code. §53.021
May not possess a
firearm anywhere unless five years
or more has passed since his or her
release from confinement or
community supervision, parole, or
mandatory supervision, whichever
date is later. Tex. Penal Code
§46.04.
B. Class A Misdemeanors
Offense:
Possession of Controlled Substance
(Tex. Health & Safety Code §481.112
- §481.121) - Class A Misdemeanor
Punishment:
Up to one year in a county jail and
a $4000.00 fine.
Probation: Class misdemeanors
can receive probation far a maximum
of 2 years (Tex.Code.Crim.Proc.
42.12 §3(b))
Effect on Driver’s License:
Adult: License suspended for 180
days (Transportation Code §521.372)
Minor: license suspended for 1 year
(Tex. Family Code §54.042(a)(2))
Deportation & Exclusion: 8 USCS
§1227(a)(2)(i):
classes of deportable aliens
include:
Any alien who at any
time alter admission has been
convicted of a violation of (or a
conspiracy or attempt to violate)
any law or regulation of a State,
the United States, or a foreign
country relating to a controlled
substance (as defined in section 102
of the Controlled Substances Act (21
U.S.C. 802)), other than a single
offense involving possession for
one’s own use of 30 grams or less of
marijuana, is deportable.
Drug abusers and
addicts. Any alien who is, or at
anytime after admission has been, a
drug abuser or addict is deportable.
Other consequences:
Is disqualified from
obtaining a concealed weapon license
while charged. Tex.
Gov’t.
Code § 411.172(3)
May not ship, transport,
or receive a firearm or ammunition,
or is otherwise in violation of
federal law (max. sentence of 10
years in prison and $5,000 fine). 18
USGS §922(g) and (n)
Generally, a defendant
convicted of a felony or misdemeanor
offense may lose the right to
receive or continue to hold a
business or professional license
issued by the slate. See generally
Tex. 0cc. Code. §53.021
May not possess a
firearm anywhere unless five years
or more has passed since his or her
release from confinement or
community supervision, parole, or
mandatory supervision whichever date
is later. Tex. Penal Code §46.04
C.
Slate Jail Felonies
Offense: Possession/
Manufacture / Delivery of Controlled
Substance (Tex. Health & Safety Code
§481.112 - §481.121) — State Jail
Felony
Punishment: 180 days to 2 years
in a State Jail facility and a
$10,000.00 fine.
Probation: State jail felony
probationers are eligible for
probation. The period may be no less
than 2 years and no more than 5
years. The Judge may extend the
period to not more than 10 years.
(Code of Criminal Procedure Art.
42.12 §15(b))
Parole Eligibility:
State jail felons are not parole
eligible and do not get good conduct
time on their sentence.
Tex.CodeCrim.Pro. 42.12
§l5(h)(l).
Effect on Driver’s License:
Adult: License suspended for 180
days (Transportation Code §521.372)
Minor: license suspended for 1 year
(Tex. Family Code §54.042(a)(2))
Deportation & Exclusion: 8 USGS
§1227(a)(2)(i):
classes of deportable aliens
include:
Any alien who at any
time alter admission has been
convicted of a violation of (or a
conspiracy or attempt to violate)
any law or regulation of a State,
the United States, or a foreign
country relating to a controlled
substance (as defined in section 102
of the Controlled Substances Act (21
U.S.C. 802)), other than a single
offense involving possession for
one’s own use of 30 grams or less of
marijuana, is deportable.
Drug abusers and
addicts. Any alien who is, or at any
time after admission has been, a
drug abuser or addict is deportable.
A state drug conviction
is a “drug trafficking crime” (and
thus an aggravated felony) if “(1)
the offense was punishable under the
Controlled Substances Act and (2) it
was a felony” under either state or
federal law. United States v.
Hernandez-Avalos 251 F.3d 505 (5th
Cir. 2001)
Other
Consequences:
Is disqualified from
obtaining a concealed weapon license
Tex. Gov’t
Code §411.172(3)
May not vote in a public
election. Tex
Elec. Code §11.002(4),
See
also Tex Const.art. XVI §2
May not serve on a petit
jury. Tex. Code
Crim. Pro. §35.16
May not serve on a grand
jury. Tex. Code
Crim. Pro §19.08
May not run for, or be
appointed to a public elective
office in the State of Texas. The
defendant is disqualified for life
unless he receives a pardon or is
“otherwise released” from the
disqualification. Tex. Elec. Code
§141.001(4)
May not ship, transport,
or receive a firearm or ammunition,
or is otherwise in violation of
federal law (max. sentence of 10
years in prison and $5,000 fine). 18
USCS §922(g) and (n)
Generally, a defendant
convicted of a felony or misdemeanor
offense may lose the right to
receive or continue to hold a
business or professional license
issued by the state. See generally
Tex. 0cc. Code. §53.021
May not possess a
firearm anywhere unless five years
or more has passed since his or her
release from confinement or
community supervision, parole, or
mandatory supervision, whichever
date is later. Tex. Penal Code
§46.04
D. Third Degree Felonies
Offense: Possession/Manufacture
/ Delivery of Controlled Substance
(Tex. Health & Safety Code §481.112
- §481.121) - 3rd Degree
Punishment: No less than 2 and
no more than 10 years in the Texas
Department of Criminal Justice and a
fine not to exceed $10,000.
Probation: Third Degree Felons
who are not otherwise disqualified
are eligible for probation. The
minimum period of supervision is 2
years. The maximum period of
supervision is 10 years. (Code of
Criminal Procedure Article 42.12
§3(b))
Parole Eligibility:
Inmate is eligible for
release on parole when the inmate’s
actual calendar time served plus
good conduct time equals one-fourth
of the sentence imposed or 15 years,
whichever is less. Tex
Gov’t.
Code §508.145(f)
An inmate serving a
sentence for which the punishment is
increased under §481.134, Health and
Safety Code (Drug-Free Zone) is not
eligible for release on parole until
the inmate’s actual calendar time
served, without consideration of
good conduct time, equals five years
or the term to which the inmate was
sentenced, whichever is less.
An inmate serving a
sentence for an offense described by
Section 3g(a)(1)(A), (C), (D), (E),
(F), (G), or (H), Tex. Code
Crim.
Proc. Article 42.12, or for an
offense for which the judgment
contains an affirmative finding
under §3g(a) (2) of that article, is
not eligible for release on parole
until the inmate’s actual calendar
time served, without consideration
of good conduct time, equals
one-half of the sentence or 30
calendar years, whichever is less,
but in no event is the inmate
eligible for release on parole in
less than two calendar years.
Article 42.12 includes:
Section 481.140, Health
and Safety Code; or
Section 481.134(c), (d),
(e), or (f), Health and Safety Code,
if it is shown that the defendant
has been previously convicted of an
offense for which punishment was
increased under any of those
subsections
Effect on Driver’s License:
Adult: license suspended for 180
days (Transportation Code §521.372)
Minor: license suspended for 1 year
(Tex. Family Code §54.042(a)(2))
Deportation & Exclusion: 8 USCS
§1227(a)(2) (i):
classes of deportable aliens include
Any alien who at any
time alter admission has been
convicted of a violation of (or a
conspiracy or attempt to violate)
any law or regulation of a State,
the United States, or a foreign
country relating to a controlled
substance (as defined in section 102
of the Controlled Substances Act (21
U.S.C. 802)) other than a single
offense involving possession for
one’s own use of 30 grams or less of
marijuana, is deportable.
Drug abusers and
addicts. Any alien who is, or at any
time after admission has been, a
drug abuser or addict is deportable.
A state drug conviction is a “drug
trafficking crime” (and thus an
aggravated felony) if “(1) the
offense was punishable under the
Controlled Substances Act and (2) it
was a felony” under either state or
federal law. United States v.
Hernandez-Avalos, 251 F.3d 505 (5th
Cir. 2001)
Other Consequences:
Is disqualified from
obtaining a concealed weapon license
Tex. Gov’t
Code §411.172(3)
May not vote in a public
election. Tex
Elec. Code §11.002(4),
See
also Tex Const.art. XVI §2
May not serve on a petit
jury. Tex. Code
Crim. Pro. §35.16
May not serve on a grand
jury. Tex. Code
Crim. Pro §19.08
May not run for, or be
appointed to a public elective
office in the State of Texas. The
defendant is disqualified for life
unless he receives a pardon or is
“otherwise released” from the
disqualification. Tex. Elec. Code
§141.001(4)
May not ship, transport,
or receive a firearm or ammunition,
or is otherwise in violation of
federal law (max. sentence of 10
years in prison and $5,000 fine). 18
USCS §922(g) and (n)
Generally, a defendant
convicted of a felony or misdemeanor
offense may lose the right to
receive or continue to hold a
business or professional license
issued by the state. See generally
Tex. 0cc. Code. §53.021
May not possess a
firearm anywhere unless five years
or more has passed since his or her
release from confinement or
community supervision, parole, or
mandatory supervision, whichever
date is later. Tex. Penal Code
§46.04
E.
Second Degree Felonies
Offense: Possession/ Manufacture
/ Delivery of Controlled Substance
(Tex. Health & Safety Code §
481.112-§481.121) -2nd Degree
Punishment: No
less than 2 and no more than 20
years in the Texas Department of
Criminal Justice and a fine not to
exceed $10,000.
Probation: Second Degree Felons
who are not otherwise disqualified
are eligible for probation. The
minimum period of supervision is 2
years. The maximum period of
supervision is 10 years. (Code of
Criminal Procedure Article 42.12
§3(b))
Parole Eligibility:
Inmate is eligible for release on
parole when the inmate’s actual
calendar time served plus good
conduct time equals one-fourth of
the sentence imposed or 15 years,
whichever is less. Tex
Gov’t.
Code §508.145(f)
An inmate serving a
sentence for which the punishment is
increased under 481.134, Health and
Safety Code (Drug-Free Zone) is not
eligible for release on parole until
the inmate’s actual calendar time
served, without consideration of
good conduct time, equals five years
or the term to which the inmate was
sentenced, whichever is less.
An inmate serving a
sentence for an offense described by
Tex. CodeCrim.Proc.Art.42.12 §3g(a)
(1) (A), (C),
(D), (E), (F), (G), or
(H), or for an offense for which the
judgment contains an affirmative
finding under §3g (a)(2) of that
article, is not eligible for release
on parole until the inmate’s actual
calendar time served, without
consideration of good conduct time,
equals one-half of the sentence or
30 calendar years, whichever is
less, but in no event is the inmate
eligible for release on parole in
less than two calendar years.
Article 42.12 includes:
Section 481.140, Health
and Safety Code; or
Section 481.134(c), (d),
(e), or (f), Health and Safety Code,
if it is shown that the defendant
has been previously convicted of an
offense for which punishment was
increased under any of those
subsections
Effect on Driver’s License:
Adult: license suspended for 180
days (Transportation Code §521.372)
Minor: license suspended for 1 year
(Tex. Family Code §54.042(a)(2))
Deportation & Exclusion: 8
USCS §1227(a)(2) (i):
classes of deportable aliens include
Any alien who at any
time alter admission has been
convicted of a violation of (or a
conspiracy or attempt to violate)
any law or regulation of a State,
the United States, or a foreign
country relating to a controlled
substance (as defined in section 102
of the Controlled Substances Act (21
U.S.C. 802)) other than a single
offense involving possession for
one’s own use of 30 grams or less of
marijuana, is deportable.
Drug abusers and
addicts. Any alien who is, or at any
time after admission has been, a
drug abuser or addict is deportable.
A state drug conviction is a “drug
trafficking crime” (and thus an
aggravated felony) if “(1) the
offense was punishable under the
Controlled Substances Act and (2) it
was a felony” under either state or
federal law. United States v.
Hernandez-Avalos, 251 F.3d 505 (5th
Cir. 2001)
Other Consequences:
Is disqualified from
obtaining a concealed weapon license
Tex. Gov’t
Code §411.172(3)
May not vote in a public
election. Tex
Elec. Code §11.002(4),
See
also Tex Const.art. XVI §2
May not serve on a petit
jury. Tex. Code
Crim. Pro. §35.16
May not serve on a grand
jury. Tex. Code
Crim. Pro §19.08
May not run for, or be
appointed to a public elective
office in the State of Texas. The
defendant is disqualified for life
unless he receives a pardon or is
“otherwise released” from the
disqualification. Tex. Elec. Code
§141.001(4)
May not ship, transport,
or receive a firearm or ammunition,
or is otherwise in violation of
federal law (max. sentence of 10
years in prison and $5,000 fine). 18
USCS §922(g) and (n)
Generally, a defendant
convicted of a felony or misdemeanor
offense may lose the right to
receive or continue to hold a
business or professional license
issued by the state. See generally
Tex. 0cc. Code. §53.021
May not possess a
firearm anywhere unless five years
or more has passed since his or her
release from confinement or
community supervision, parole, or
mandatory supervision, whichever
date is later. Tex. Penal Code
§46.04
F. First Degree Felonies
Offense: Possession/
Manufacture / Delivery of Controlled
Substance (Tex. Health & Safety Code
§481.112-§48l.121)- 1st
Degree
Punishment: No less than 5 and
no more than 99 years or life in the
Texas Department of Criminal Justice
and a fine not to exceed $10,000.
Probation:
First Degree Felons who are not
otherwise disqualified are eligible
for probation. The minimum period of
supervision is 5 years. The maximum
period of supervision is 10 years.
(Code of Criminal Procedure Article
42.12 §3(b)
Parole
Eligibility:
Inmate is eligible for release on
parole when the inmate’s actual
calendar time served plus good
conduct time equals one-fourth of
the sentence imposed or 15 years,
whichever is less. Tex
Gov’t.
Code §508.145(f)
An inmate serving a
sentence for which the punishment is
increased under 481.134, Health and
Safety Code (Drug-Free Zone) is not
eligible for release on parole until
the inmate’s actual calendar time
served, without consideration of
good conduct time, equals five years
or the term to which the inmate was
sentenced, whichever is less.
An inmate serving a
sentence for an offense described by
Tex. CodeCrim.Proc.Art.42.12 §3g(a)
(1) (A), (C),
(D), (E), (F), (G), or
(H), or for an offense for which the
judgment contains an affirmative
finding under §3g (a)(2) of that
article, is not eligible for release
on parole until the inmate’s actual
calendar time served, without
consideration of good conduct time,
equals one-half of the sentence or
30 calendar years, whichever is
less, but in no event is the inmate
eligible for release on parole in
less than two calendar years.
Article 42.12 includes:
Section 481.140, Health
and Safety Code; or
Section 481.134(c), (d),
(e), or (f), Health and Safety Code,
if it is shown that the defendant
has been previously convicted of an
offense for which punishment was
increased under any of those
subsections
Effect on Driver’s License:
Adult: license suspended for 180
days (Transportation Code § 521.372)
Minor: license suspended for 1 year
(Tex. Family Code §54.042(a)(2))
Deportation & Exclusion:
8 USCS §1227(a)(2) (i):
classes of deportable aliens include
Any alien who at any
time alter admission has been
convicted of a violation of (or a
conspiracy or attempt to violate)
any law or regulation of a State,
the United States, or a foreign
country relating to a controlled
substance (as defined in section 102
of the Controlled Substances Act (21
U.S.C. 802)) other than a single
offense involving possession for
one’s own use of 30 grams or less of
marijuana, is deportable.
Drug abusers and
addicts. Any alien who is, or at any
time after admission has been, a
drug abuser or addict is deportable.
A state drug conviction is a “drug
trafficking crime” (and thus an
aggravated felony) if “(1) the
offense was punishable under the
Controlled Substances Act and (2) it
was a felony” under either state or
federal law. United States v.
Hernandez-Avalos, 251 F.3d 505 (5th
Cir. 2001)
Other Consequences:
Is disqualified from
obtaining a concealed weapon license
Tex. Gov’t
Code §411.172(3)
May not vote in a public
election. Tex
Elec. Code §11.002(4),
See
also Tex Const.art. XVI §2
May not serve on a petit
jury. Tex. Code
Crim. Pro. §35.16
May not serve on a grand
jury. Tex. Code
Crim. Pro §19.08
May not run for, or be
appointed to a public elective
office in the State of Texas. The
defendant is disqualified for life
unless he receives a pardon or is
“otherwise released” from the
disqualification. Tex. Elec. Code
§141.001(4)
May not ship, transport,
or receive a firearm or ammunition,
or is otherwise in violation of
federal law (max. sentence of 10
years in prison and $5,000 fine). 18
USCS §922(g) and (n)
Generally, a defendant
convicted of a felony or misdemeanor
offense may lose the right to
receive or continue to hold a
business or professional license
issued by the state. See generally
Tex. 0cc. Code. §53.021
May not possess a firearm anywhere unless
five years or more has passed since his or
her release from
confinement or community supervision,
parole, or mandatory supervision, whichever
date is later. Tex. Penal Code §46.04
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