Drug Conspiracy Charges in Texas — Federal vs State Prosecution
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Texas Bar verified. Reggie London (Texas Bar No. 24043514) and Njeri London (Texas Bar No. 24043266) are the co-founding partners of L and L Law Group, PLLC — based at 5899 Preston Rd, Suite 101 in Frisco, Texas (Collin County), with many 5-star Google reviews, and available 24/7 for criminal defense consultations.
Table of Contents
The federal side: 21 U.S.C. §846
Federal drug conspiracy is the same offense as the underlying drug offense. If two or more people agree to commit a violation of the Controlled Substances Act, they're charged with conspiracy — with the same penalty range as the underlying substantive offense.
No overt act required. Unlike most federal conspiracy statutes (which require an overt act), drug conspiracy under §846 requires only the agreement. Discussing the plan can be enough.
Quantity attribution. Each conspirator is responsible for "reasonably foreseeable" drug quantity within the conspiracy — not just the amount the individual handled. A low-level participant in a large conspiracy can face exposure based on the conspiracy's total quantity.
Mandatory minimums. Federal law imposes mandatory minimum sentences based on drug quantity:
- 500g+ cocaine, 1kg+, 100g+ (powder/crack varies), 5g+ meth, certain quantities — 5-year mandatory minimum
- 5kg+ cocaine, 1kg+ pure, 50g+ meth pure — 10-year mandatory minimum
- With death/serious injury resulting — 20-year mandatory minimum
- Career offender enhancements can produce 20-year minimums
Sentencing Guidelines. USSG §2D1.1 sets base offense levels by quantity. Calculations are complex and produce substantial sentences for typical drug conspiracy cases.
The state side: Texas Penal Code §15.02
Texas state-level criminal conspiracy is governed by Penal Code §15.02. Key differences from federal:
Overt act required. Texas requires at least one overt act in furtherance of the conspiracy — not just agreement.
Penalty: one category below the underlying offense. If the substantive offense is a 2nd-degree felony, conspiracy is 3rd-degree. If 1st degree, conspiracy is 2nd degree. Exceptions: capital felony conspiracy stays at 1st-degree level.
Punishment within Texas tiers. State conspiracy follows Texas felony classifications (state jail, 3rd, 2nd, 1st degree). No federal mandatory minimums. Probation eligibility preserved up to 10-year sentences.
Combined with Engaging in Organized Criminal Activity (§71.02). Texas drug conspiracy cases often also charge "engaging in organized criminal activity" which enhances the underlying offense by one tier. The cumulative effect on punishment is substantial.
Which sovereign prosecutes?
The decision typically rests with federal authorities (DEA, HSI, U.S. Attorney's Office) based on factors:
- Interstate commerce: Conspiracies crossing state lines typically go federal
- Drug quantity: Higher quantities (kilos vs. grams) often trigger federal interest
- Organizational structure: Cartel-related, organized distribution networks → federal
- Co-defendant cooperation: Cases with federal cooperators stay federal
- Investigation origin: Cases that started as federal investigations (wiretaps, controlled buys, etc.) stay federal
- Defendant profile: Career offenders, foreign nationals more likely federal
State prosecution typically retains: smaller-quantity cases, cases without interstate elements, cases originating from local police investigations, cases not involving organized distribution.
The decision often involves communication between local DAs and U.S. Attorney's Office. Defense counsel can sometimes influence this through pre-indictment advocacy.
Defense considerations split by sovereign
Federal defense priorities:
- Suppression motion on wiretaps, surveillance, search warrants
- Drug quantity disputes (defense expert on attribution)
- Withdrawal from conspiracy defense (limited but possible)
- Safety valve qualification (USSG §5C1.2 reduces below mandatory minimum)
- Substantial assistance/cooperation (USSG §5K1.1)
- Sentencing Guidelines departure motions
State defense priorities:
- Suppression motion on standard Fourth Amendment grounds
- Conspiracy element challenges (agreement, overt act)
- Reduction from conspiracy to underlying offense (substantive conviction without conspiracy)
- Plea negotiation within Texas felony tiers
- Deferred adjudication eligibility check
Federal cases require specialist federal criminal defense counsel ($25,000-$100,000+ typical). State cases follow standard felony defense practice ($5,000-$25,000 typical). Defense fee variation reflects the procedural complexity and stakes.
Texas Penalty Group 1 Charges by Weight
Texas Health & Safety Code § 481.115 charges escalate by weight:
| Weight | Offense | Range | Fine |
|---|---|---|---|
| Under 1 g | State jail felony | 180 days-2 years state jail | $10,000 |
| 1-4 g | 3rd degree felony | 2-10 years TDCJ | $10,000 |
| 4-200 g | 2nd degree felony | 2-20 years TDCJ | $10,000 |
| 200-400 g | 1st degree felony | 5-99 years/life TDCJ | $100,000 |
| 400 g+ | Enhanced 1st degree | 10-99 years/life TDCJ | $100,000 |
Have a Texas legal question?
Call L and L Law Group for a free, confidential consultation. We handle criminal defense across Collin, Dallas, Denton, and Tarrant counties.
Call (972) 370-5060In our practice defending Texas criminal cases, we have represented clients in Collin, Dallas, Denton, and Tarrant County criminal courts on the full Texas Penal Code and Health & Safety Code spectrum. Reggie's prosecutor background in Dallas County means we know the State's evidentiary playbook; Njeri's trial-trained motion practice anchors the suppression-driven defense work.
Key Legal Terms
- Penalty Group
- Texas Health & Safety Code § 481.102-481.105 classification of controlled substances by abuse potential and accepted medical use. Determines weight tiers and punishment ranges.
- Article 38.23
- Texas Code of Criminal Procedure exclusionary rule. Evidence obtained in violation of any federal or Texas constitutional or statutory provision is inadmissible against the accused.
- Aggregation
- Texas H&S § 481.002(5) rule that the total weight of any controlled substance, including adulterants and dilutants, counts toward the offense weight tier.
- 3g Offense
- CCP Article 42A.054 list of offenses ineligible for judicial probation and requiring 50% sentence served before parole eligibility (formerly Article 42.12 § 3g).
- Pretrial Diversion
- Pre-charge alternative under CCP Article 32.02 in which the prosecution agrees to dismiss charges upon successful completion of conditions (counseling, community service, restitution).
Frequently Asked Questions
Why is federal worse than state for drug conspiracy?
Mandatory minimums, Sentencing Guidelines, quantity attribution rules, limited probation availability. Federal drug conspiracy sentences for typical mid-level participants commonly run 5-15 years. Texas state conspiracy at similar quantity might be 2-7 year range with probation eligibility.
Can I be tried federally and state for same conduct?
Yes, under "dual sovereignty" doctrine. State and federal governments are separate sovereigns; Double Jeopardy doesn't bar successive prosecutions. In practice, one sovereign typically defers to the other. Both prosecuting same conduct is rare but constitutional.
What's "withdrawal from conspiracy"?
Affirmative defense available in some conspiracy cases. Defendant must show affirmative action to withdraw, communicate withdrawal to co-conspirators, and not benefit from subsequent conspiracy acts. Federal and state law differ on requirements. Limited application; rarely succeeds at trial but can support cooperation arguments.
How does the safety valve work?
Federal USSG §5C1.2 allows sentencing below mandatory minimum if defendant: (1) has limited criminal history, (2) wasn't leader/manager, (3) didn't use violence/weapons, (4) didn't cause death/injury, (5) provides truthful information to government. Available in many drug cases but requires defendant cooperation.
Can drug conspiracy be charged without underlying offense conviction?
Yes. The conspiracy is a separate offense. Co-conspirators can be convicted of conspiracy even if some never possessed the drugs themselves. The agreement and (in state cases) overt act are sufficient.
