This past September, Texas added a new name to its list of Class III controlled substances. Salvia Divinorum, commonly known as “Seers Sage, Salvia, or Ska Maria Pastora”, became a Class III controlled substance upon the passage of House Bill 124. The bill made its third and final appearance before the Texas Legislature this year after two other attempts to pass the bill failed in 2007 and 2009. Under the new law, the possession, sale, or use of any part of the Salvia Divinorum plant including leaves, seeds, extracts, or other compounds, is now a crime.
The enactment of House Bill 124 makes Texas one of a growing number of states to criminalize the possession and sale of Salvia Divinorum. In Texas, as in other places, the legislation which made Salvia Divinorum illegal was tied to efforts to regulate synthetic marijuana, even though the two substances are not similar. Interestingly enough, the United States Drug Enforcement Administration (DEA) has yet to list Salvia Divinorum as a controlled substance, despite the fact that it is a known hallucinogen.
There are a few things that make the Texas Salvia law interesting, from an attorney’s perspective. For example, the penalties for possession of Salvia are more severe than the penalties for possessing marijuana. If you are found to be in possession of any amount of Salvia up to 28 grams, you are guilty of a Class A misdemeanor which is punishable by one year in jail and a maximum fine of $4,000.00. If you had twice that amount of marijuana in your possession, you would be guilty of a misdemeanor punishable by incarceration of 180 days, and a fine of $2000.00. Both substances are sold as dried plants, which users smoke in order to get high, but the laws which penalize the use of each plant involve different units of measurement. In fact, the unit of measurement which is used in the Salvia law (grams) is used to measure quantities of controlled substances that are sold in pill or powder form. The effect of this discrepancy between the laws that regulate Salvia and marijuana is that individuals who use Salvia instead of marijuana can be punished much more harshly for possessing a much smaller amount.
It is also worth noting that the Texas Salvia law is written so broadly that it may not pass muster under the Religious Freedom Restoration Act. Some people use Salvia Divinorum as a part of their spiritual practice, and when they do this, they chew on the leaves of the plant. This practice originated with the Mazatec people in Mexico, and has been incorporated into other religions where vision quests or divination are part of spiritual practice. Recreational users of Salvia smoke the plant, instead of chewing it. Both activities are covered by the law, which prohibits the use or possession of any part of the plant.
Perhaps the most puzzling thing about the criminalization of Salvia Divinorum is that there is no apparent reason for it to be classified as a Class III controlled substance. Although Salvia is a hallucinogen, there are no reports of Salvia-related health concerns coming from the medical community. There are also no reports coming from law enforcement regarding any danger to the public as a result of Salvia use. Salvia is usually used in a quiet place, away from people, so it is not a “party” drug, like many of the substances that cause problems for law enforcement.
If you have been charged with the possession of Salvia Divinorum or any other controlled substance, you need the assistance of a seasoned criminal defense attorney. Schedule a free consultation with Alex Tyra, a Longview, Texas criminal defense attorney, today. Call our law office at (903) 753-7499, or contact us through our website.
