SUBJECT:Possession of controlled substance cases – residue under .01 grams NEW POLICY:Effective January 1, 2010, the treatment of cases involving possession of a controlled substance (Penalty Groups 1 and 2), whether a crack pipe withresidue or any amount of trace evidence, will NOT be filed as a state jail felony when theweight of the retained controlled substance is less than .01 grams.The Harris County District Attorney’s Office commenced a review of policies and procedures at the beginning of 2009 to ensure that the office was complying withapplicable statutory and case law in observance of our mandate to see that justice is done.One of the issues raised was whether as a matter of policy there should be a minimummeasurable amount of controlled substance as a requisite to filing charges. Adetermination was made, after consultation with scientific academies and forensiclaboratories, that the minimum threshold amount of the Penalty Group 1 and 2 should be

.01 (one/one hundredth) gram

( please see attached photo exhibits).The defendant has a right to inspect evidence that is necessarily indispensable to theState’s case. Because an amount lower than .01 grams does not allow for retesting of thematerial, the better practice, and what is becoming the standard in Texas, is to require anamount of at least .01 grams to file the felony possession charge. Travis and Bexar Counties hold fast to a quantity threshold of .01 grams while Tarrant County uses .02grams as a threshold that allows for two forensic tests of the controlled substances. This change is also consistent with the National Research Council’s proposal for DNAevidence and testing, which recommends that samples be divided and half retained for independent testing. 8 Crim. L.F. 445 (1997). The ultimate safeguard against error dueto sample mix-ups is to provide an opportunity for retesting.OPTIONS:1)If the weight of the controlled substance cannot be determined, and paraphernaliais present, the case should be filed as a Class C paraphernalia charge. If the criminalepisode also involved another offense, a Class A or B misdemeanor or felony, the casemay be presented to a screening prosecutor at intake.2)If the trace quantity is in a receptacle other than drug paraphernalia, such as a baggie, mirror, etc., the officer should release the suspect after appropriate identificationand then submit the substance for analysis. If on completion of the lab analysis, thequantity is equal to or greater than .01 grams of a controlled substance, the officer may present the case to a screening prosecutor at intake. If that prosecutor accepts charges,the officer may then obtain a to-be warrant, or the case can be directly presented to agrand jury.