concurring in part and dissenting in part.
Phentermine is a rather innocuous stimulant prescribed as an appetite suppressant in treating obesity. Being unable to subscribe to the anomalism of possession of phentermine carrying a misdemeanor penalty one season, going without any penalty whatsoever during another and then being upgraded to a second degree felony offense in the present season — the latter two changes made without direct legislative enactment 1 — I must respectfully dissent to all but the result.
From the time the Legislature of Texas first proscribed possessing “any drug that bears the legend: ‘Caution: federal law prohibits dispensing without prescription , 2" possession of a legend drug, including phen-termine whenever it became one until August 28, 1973,3 was a misdemeanor offense. Penalties were decreased or increased from time to time to the present punishment of a fine not to exceed $1,000.00 or confinement in jail for a period not to exceed 6 months, or both.4
Riddle v. State, 560 S.W.2d 642 (Tex.Cr.App.1977) and Rumberas v. State, 560 S.W.2d 644 (Tex.Cr.App.1977), hard on the heels of Riddle, decided that the action of the Commissioner in adding phentermine to Schedule IV of the Texas Controlled Substances Act resulted in there being “no penalty provided for the possession or delivery of phentermine,” Riddle, supra, at 644.5 This conclusion was reached on the rationale that since the dangerous drug act defines a dangerous drug as one “that is not included in Schedules I through V of the Texas Controlled Substances Act,” the action of the Commissioner of Health had the legal effect of removing phentermine from its classification as a dangerous drug, so that the penalty provisions of the dangerous drug act no longer applied to otherwise unlawful acts involving phentermine.
Thereafter, at some point not revealed by our research of opinions of this Court or other source material, at least at the time petitioner in Ex parte Ashcraft, 565 S.W.2d 926 (Tex.Cr.App.1978) was indicted, a compensating strategy had been developed in some quarters. The notion was to allege the offense as possessing “phentermine, an isomer of methamphetamine,” prove the allegation by competent testimony and, if the *910evidence is otherwise sufficient, convict the offender for a second degree felony for which the penalty is confinement for any term of not more than 20 years or less than 2 years. That the strategy succeeded is demonstrated by the fate of Ashcraft, whose term of confinement is not reflected by the opinion in his case, and is further shown by the punishment meted to petitioner in this case, imprisonment for .5 years, and by the majority opinion rendered herein.
Again, these seasonal changes from the spring of misdemeanor punishment through the carefree summer of unrestrained conduct on through to the winter of discontent at felony confinement were all made without an intentional or knowing legislative modification of the calendar. Changing the metaphor, the exquisite irony of the phen-termine ball being volleyed about is that when the Commissioner served it into Schedule IV because the Federal authorities had done so, he and they could act only after making certain findings as prescribed in the Federal act and Section 2.13 of the Texas Controlled Substances Act:
“The Commissioner shall place a substance in Schedule IV if he finds that:
(1) the substance has a low potential for abuse relative to substances in Schedule III;
(2) the substance has currently accepted medical use in treatment in the United States; and
(3) abuse of the substance may lead to limited physical dependence or psychological dependence relative to the substances in Schedule III.”
As originally enacted by the Legislature, and without substantial change since then, the substances placed in Schedule IV were, without readily ascertainable exception, those placed in Penalty Group 3 by the Legislature — the penalty for which being that provided for a Class A misdemeanor! On the other hand, methamphetamine is a Schedule II substance, meaning, as provided by Section 2.11 of the Controlled Substances Act, that it has “high potential for abuse,” has currently accepted medical use in treatment in the United States or currently accepted medical use “with severe restrictions” and its abuse may lead to “severe psychological or physical dependence.” 6
After the Attorney General of the United States, acting on findings and recommendations of the Secretary of Health, Education and Welfare, finally placed amphetamine, methamphetamine and phentermine in the respective schedule he found appropriate upon findings mandated by Congress— which are the same prescribed by our Legislature in delegating authority to the Commissioner — amphetamine and methamphetamine ended up in Schedule II, 21 CFR § 1308.12(d),7 while phentermine was assigned to Schedule IV, 21 CFR § 1308.-14(d).8 Again, along with the action of our own Commissioner, express recognition and acknowledgments that phentermine is to be regarded and treated quite differently from methamphetamine under the law.
Given this remarkable state of affairs, then, the penal consequences of possessing phentermine depended not on a legislative pronouncement of offenses and classification of penalties but on such uncertain conditions as the scholarship of a prosecuting attorney9 and availability of a willing ex*911pert witness.10 The liberty of a citizen should be and is intended under our form of government to be vouchsafed by firmer guarantees.
Profoundly distressed in these circumstances, we felt obliged to explore pertinent legislative history and, having done so, have discovered illuminating material that lights the way to our conclusion as to what the Legislature actually intended.11
The Texas Controlled Substances Act was initiated in the legislative process by introduction of House Bill 447, 1973 House Journal 587. The Bill tracked a model controlled substances act that had been submitted to the several states by an agency of the Federal government; the model bill, in turn, followed the format and contained provisions similar to the Federal Controlled Substances Act. That is, for both regulatory and penal purposes all substances to be controlled were categorized into schedules. There were no penalty groups. Consistent with that concept, House Bill 447 proposed to repeal in its entirety the Texas Dangerous Drug Act, Article 726d, 1925 Penal Code.
Along the legislative way a complete substitute for the original bill was prepared and presented, 1973 House Journal 2857. For some reason not reflected in the legislative journals, the substitute, while retaining the schedule format without separate penalty groups, proposed to amend enumerated sections of Article 726d rather than repeal it entirely.12 Amendments to the Dangerous Drugs Act were in § 6.03 of the substitute bill under the heading “Conforming Amendments,” and for the first time appeared the language defining a dangerous drug by adding the phrase “that is not included in Schedules I through V” of the Controlled Substances Act, id. at 2886. Other amendments were made to provisions relating to marihuana and still further conforming amendments dealing with matters other than the Dangerous Drugs Act were added to § 6.03. Thus the substitute for H.B. 447 passed by the House of Representatives.
Senate consideration began with another substitute originating in its own jurisprudence committee. The Senate substitute in its § 6.15 proposed to repeal in its entirety the Dangerous Drugs Act. Also, it departed from the concept of characterizing substances into schedules for both regulatory and penal purposes, adding particularized penalty groups. In this fashion, all drugs became controlled substances to be regulated by schedules but penally proscribed by groups.
Each House, then, demonstrated clearly its desire and will that a legend drug such as phentermine be regulated and subject to criminal penalties under either the Controlled Substances Act or the Dangerous Drugs Act. The determination of which, originally to be made by the Legislature itself, was delegated to the Commissioner. Either way, though, prescribed unlawful acts were penal offenses with penalties of confinement, fine or both.
The Senate version was returned to the House where, on May 21, its members refused to concur with the Senate amendments. Conferees were appointed and the Conference Committee made its report May 28 — the eve of adjournment. As it came from conference, House Bill 447, a mix of both bills, contained provisions for penalty groups, as well as schedules. Section *9126.03(a), however, remained untouched, continuing to read as it did when the Bill passed out of the House. In other words, having accepted the concept of schedules for regulatory purposes only and penalty groups for penal offenses, the Conference Committee did not modify the definition of dangerous drugs to comport with the new concept.
The primary rule of statutory construction is to ascertain and give effect to intent of the legislative body, Cousins v. Sovereign Camp, W.O.W., 120 Tex. 107, 35 S.W.2d 696. By definition, the Code Construction Act, Article 5429b-2, V.A.C.S., is not applicable to either the Controlled Substances Act or the Dangerous Drugs Act,13 but this Court has previously considered many of the matters enumerated in § 3.03 of the Act14 in construing a statute, as in Newsom v. State, 372 S.W.2d 681 (Tex.Cr.App.1963).15 We believe that resort to those construction aids is not precluded and have been guided by some of them in giving consideration to the matter, in coming to the conclusion we have. Thus we are impressed by the facts and circumstances outlined above which demonstrate conclusively that at all times before the Conference Committee report was written every legislative undertaking was clearly designed to continue penal proscriptions regarding dangerous drugs— whether included in a schedule or a penalty group or retained in remnants of the old Act. Stated another way, there is not the slightest suggestion in any of the legislative history of sentiment for abandoning criminal prohibitions regarding dangerous drugs. On that subject, we simply cannot bring ourselves to believe that members of the Conference Committee, being also legislative floor leaders in their respective Houses, would deliberately accomplish in conference something so contrary to the clear intent and purpose of each House. Indeed, their rules expressly restrict discussions and actions of conferees “solely to the matters in disagreement between the two Houses. » 16
We conclude, therefore, that in accepting the House approach of amending the Dangerous Drugs Act rather than repealing it outright, retention by the Conference Committee of § 6.03 phraseology of “schedules” rather than converting it to the Senate concept of “penalty groups” was purely an inadvertent oversight. Given the structure erected by the Conference Committee from the material supplied by each House, we are firm in the judgment that the true intent of both Houses and the Conference Committee is achieved by reading § 6.03(a) as it amends subsection (a), § 2, of old Article 726d, now Article 4476-14, Y.A.C.S., in terms of “penalty groups” rather than “schedules.” 17
*913Accordingly, phentermine, being a legend drug, and not then included in Penalty Groups 1 through 4 of the Controlled Substances Act, was criminally prohibited under the Dangerous Drugs Act, and its unlawful possession was a Class B misdemean- or as prescribed in § 15, Article 4476-14, V.A.C.S.18 The relief should be granted, the felony conviction in Cause No. 218,175 vacated and set aside and, the trial court being without jurisdiction, the indictment dismissed.
. All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated. Further, use of the collective “we” and “our” was in a different original posture; they should now be read as “I” and “my.”
. See Historical Note following Article 4476-14, V.A.C.S., formerly Article 726d, V.A.P.C., originally enacted by Acts 1959, 56 Leg., p. 923, ch. 425.
. That is the date phentermine was added to Schedule IV of the Texas Controlled Substances Act by the Commissioner of Health after it had been added to Schedule IV of the Federal Drug Enforcement Administration List of Controlled Substances, published in the Federal Register on July 6, 1973. See Riddle v. State, 560 S.W.2d 642, footnote 2 at 644 (Tex.Cr.App.1977).
. Article 4476-14, Section 15(a), V.A.C.S.
. The ratio decidendi without which the conclusion could hardly have been reached is now unashamedly labeled by the majority as mere “dictum.” Yet in Lumberas the Court flatly states, “In Riddle we held that there is no longer any penalty provided for the possession or delivery of phentermine.”
. A relative of methamphetamine is amphetamine which, in Schedule II, Section 2.04(d), is characterized, along with methamphetamine, as having a potential “for abuse associated with a stimulant effect on the central nervous system” but, unlike methamphetamine, is in Penalty Group 3, Section 4.02(d)(1)(A), the punishment for possession of which is as a Class A misdemeanor.
. “(d) Stimulants. * * *
(1) Amphetamine, its salts, optical isomers, and salts of its optical isomers
12) Methamphetamine, its salts, isomers, and salts of its isomers . . . ”
. “(d) Stimulants. * * *
(1) . . .
(2) Phentermine . .”
. Is he under the impression that phentermine is still a dangerous drug or has he learned that it was placed in Schedule IV and stripped of penalties or is he alert to the Ashcraft ploy?
. A witness prepared to opine that phenter-mine is an isomer of methamphetamine rather than an amphetamine-like drug.
. Unjust, absurd or unreasonable consequences of reading and enforcing a penal statute literally are to be avoided in construing a statute, and courts are bound to presume that such consequences were not intended and adopt a construction which will promote the purpose for which legislation was passed. Newsom v. State, 372 S.W.2d 681 (Tex.Cr.App.1963).
.Our surmise is that proponents of the substitute deemed it appropriate to retain some measure of regulatory authority in the State Board of Pharmacy.
. See, e. g., Harris County v. Suburban Utility Co., 547 S.W.2d 72, 74 (Tex.Civ.App. — Houston (1st Dist.) 1977, no writ).
. “Section 3.03. In construing a statute, whether or not the statute is considered ambiguous on its face, a court may consider among other matters the
(1) object sought to be attained;
(2) circumstances under which the statute was enacted;
(3) legislative history;
(4) common law or former statutory provisions, including laws upon the same or similar subjects;
(5) consequences of a particular construction;
(6) administrative construction of the statute; and
(7) title, preamble, and emergency provision.”
. “The rule is that in construing a statute its subject matter, reason and effect must be looked to and when a literal enforcement would lead to consequences which the Legislature could not have contemplated, the courts are bound to presume that such consequences were not intended and adopt a construction which will promote the purpose for which the legislation was passed. Baldridge v. State, 167 Tex.Cr.R. 519, 321 S.W.2d 309, and cases cited.”
. House Rule 22, Section 8; Senate Rule 96, Texas Legislative Manual.
. In this my view is fortified by a recent legislative expression of intent and purpose. H.B. 354, Acts 1979, 66th Leg., ch. 90, p. 163 was adopted almost unanimously April 29, 1979, thereafter approved by the Governor and became effective May 2, 1979. Its caption informs, inter alia, that it is amending “§ 2(a) . relating to the definition of dangerous *913drugs.” Its § 8 amends § 2(a), in part, to read as follows:
“(a) The term ‘dangerous drug’ means any drug or device that is not included in Penalty Groups I through IV of the Texas Controlled Substances Act . . . ”
I note use of Roman rather than Arabic numerals but attach no significance to it other than scrivener’s choice.
. S.B. 322, Acts 1979, 66th Leg., ch. 598, p. 1278 is a comprehensive amendment of the Texas Controlled Substances Act. It finally passed the Legislature May 28, 1979, as did H.B. 1096 which appears to be exactly the same legislation. Section 4 amends Schedule IV to add in its subsection (d) as Item (2), phentermine and § 6 amends certain subsections of § 4.02, Texas Controlled Substances Act, by including in its subsection (d), Penalty Group 3(11) as Item (I), phentermine. Possession of phentermine is now under § 4.04(b)(3) a Class A misdemeanor. In tandem with H.B. 354, this legislation moots the opinions of this Court in such cases as Riddle, Lumberas, and Ashcratt, supra, and their progeny insofar as they are based on the proposition that phenter-mine was either not a dangerous drug or was a controlled substance in some penalty group of that Act.