dissenting.
For the reasons stated in my separate opinion in Ex parte Wilson, 588 S.W.2d 905, 909 (Tex.Cr.App.1979), I dissent.
*319Correcting its earlier mistakes, the Legislature placed phentermine in Penalty Group 3 after preparations of codeine, the barbi-tals and peyote, making its possession a Class A misdemeanor.1 I simply cannot subscribe to upholding an assessment of punishment for five years confinement in the Texas Department of Corrections fixed May 1, 1979—on manifestly inadvertent legislative action—especially when some ninety days thereafter the maximum punishment allowable would be a fine not to exceed $2,000, confinement for a term of not more than one year in jail, or both.
Cases such as this one give the criminal justice system a bad name. Phentermine is an innocuous appetite depressant legitimately used in treating obesity—a diet pill, if you will. We should insist that the punishment fit the crime.2
I dissent.
. Acts 1979, 66th Leg., p. 1286, ch. 598, § 6, effective August 27, 1979.
. Contrary to the interpretation of these comments by the majority, I am not decrying the punishment assessed, per se, but the refusal of the Court to recognize and accept the proposition that possession of phentermine is, and under proper construction, always has been a misdemeanor offense. August 28,1973, following the lead of the Attorney General of the United States, acting on findings and recommendations of the then Secretary of Health, Education and Welfare, our State Commissioner of Health added phentermine to Schedule IV in the Texas Controlled Substances Act. That means he found, as had the Attorney General of the United States, that phentermine has a relatively low potential for abuse, has currently accepted medical use and abusing it may lead to relatively “limited physical dependence or psychological dependence.” See Ex parte Wilson, supra, at 909-910. So far as I have ascertained, not a single substance in Schedule IV has ever been classified as a Penalty Group 1 second degree felony, and certainly phenter-mine eo nomine never has been.