I have been presented with this issue twice this week. Because HSC 481.124 (possession or transport of certain chemicals with intent to manufacture controlled substance) is a new offense, I haven't been able to find a good answer. Here's the short version: Is over-the-counter pseudoephedrine hydrochloride (Sudafed or generic equivalent) an immediate precursor for the purpose of that offense?
In my opinion, the Sudafed is not an immediate precursor because it's the stuff that gets extracted from the Sudafed that is used for making meth. That seems to be supported by HSC 481.034(f), which states, "If the commissioner designates a substance as an immediate precursor, a substance that is a precursor of the controlled precursor is not subject to control solely because it is a precursor of the controlled precursor."
While I'm at it, I've got a related question. Is it true that it is illegal to purchase or possess more than X packages of Sudafed at one time? That is the widely-held belief among everyone from meth cooks to police officers. I know individual stores may limit the quantities purchased, but I'm not aware of the specific Texas law. Is it a federal law?
I guess I'd argue that possession of 10,000 sudafed tablets w/o some legitimate status, i.e. retailer or wholesaler of groceries or pharmacy supplies, would be fairly persuasive evidence that you possessed it as a precursor rather than having a serious head cold. Some extraneous offenses, tools, other needed chemicals, or finished product might help make the case. Sort of a swearing match, though: I swear I needed that Sudafed, man!
Ephedrine and Pseudoephedrine are defined as "chemical precursors" in H&S code 481.002(51).
Sec. 481.124 actually gives you a presumption of intent to manufacture meth if the defendant possesses or transports "more than 9 grams, three containers packaged for retail sale, or 300 tablets or capsules of a product containing ephedrine or pseudoephedrine" AND anhydrous ammonia OR 3 things like red phosphorus, muriatic acid, and charcoal lighter fluid, etc.
But, 481.124 also is worded to prohibit possession of an "immediate precursor" which has it's own definition (that is beyond me) in 481.002(22). Here's where I need a chemist.
So it's the possession of the "chemical precursor" that is in Sudafed that could help you with a presumption of intent to manufacture meth. But I don't think Sudafed alone would get you there (unless maybe you had 10,000 tablets). Does this help?
Whether someone possesses 1 Sudafed tablet or 1 million Sudafed tablets, I still don't think that makes any difference under HSC 481.124. Regardless of the confusing presumptions that are enumerated in that statute, the offense itself is rather straightforward: A person commits an offense when, with intent to unlawfully manufacture a controlled substance they possess one of three different things. And I just don't think that Sudafed is one of those three things.
In the latest case before me I have two guys who got caught with many boxes of generic Sudafed. They told the cops that they planned to use the stuff to make meth. But, based on what has been stated here, I don't think there is an offense. Does anyone disagree?
Can't even find the statute you're talking about. Lexis tells me that 481.124 was repealed in 1989. I say prosecute 'em and let god sort 'em out. What about attempted manufacture or conspiracy to manufacture?
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