Riddle v. State
| Decision Date | 02 November 1977 |
| Docket Number | No. 55890,55890 |
| Parties | J. C. RIDDLE, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
DALLY, Commissioner.
This is an appeal from a conviction for the delivery of phentermine; the punishment is confinement in jail for 4 months.
We have reviewed the record as required by Art. 40.09, Sec. 13, V.A.C.C.P., and unassigned error requires that we reverse the judgment. At the time that it is alleged that appellant delivered phentermine there was no criminal penalty provided for the act, nor is there at the present time.
Substances which are included in the five schedules of controlled substances of the Controlled Substances Act are by definition not dangerous drugs. 1 Prior to the day on which the appellant delivered the phentermine, that substance had been added to Schedule IV of the Controlled Substances Act by the Commissioner of Health. 2 Therefore, it no longer could be classified as a dangerous drug, and the penalty provisions of the Dangerous Drug Act did not apply to the delivery of phentermine.
Although the Commissioner of Health has been authorized by the Legislature to add to, to delete from, and to reschedule substances in the five schedules of the Controlled Substances Act, the commissioner has not been authorized to add substances to or delete substances from the four penalty groups of the act. We observe that the Controlled Substances Act does not provide penalties for possession and delivery of substances unless they are included in one of the four penalty groups of the act. 3 Since phentermine has not been added to a penalty group in the Controlled Substances Act, there is no penalty provided for the possession or delivery of phentermine.
The judgment is reversed and the prosecution is ordered dismissed.
Opinion approved by the Court.
1 The Dangerous Drug Act, Art. 4476-14, Sec. 2(a), V.A.C.S., defines a dangerous drug as "any drug or device that is not included in Schedules I through V of the Texas Controlled Substances Act and that is unsafe for self-medication, and includes the following:
The Controlled Substance Act, Art. 4476-15, Sec. 2.17, V.A.C.S., provides that:
The indictment alleged that the appellant, on February 6, 1976, "did then and there knowingly and intentionally deliver to Agent Ted Retchloff a dangerous drug, namely: Phentermine which must bear the legend: Caution: federal law prohibits dispensing without a prescription."
2 Section 2.09(e) of the Controlled Substances Act provides:
"If any substance is designated, rescheduled, or deleted as a controlled substance under federal law and notice thereof is given to the commissioner, the commissioner shall similarly...
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