ON STATE’S MOTION FOR REHEARING
TEAGUE, Judge.Appellant has appealed to this Court a total of eleven convictions, all predicated upon obtaining by forged prescriptions the drugs Dilaudid and Desoxyn. On original submission, a unanimous panel opinion of this Court, authored by Judge Truman E. Roberts, which opinion relied upon as its authority this Court’s decision of Ex parte Everett, 635 S.W.2d 554 (Tex.Cr.App.1982), ordered nine of the convictions reversed because the substances named in the indictments, Dilaudid and Desoxyn, were not specifically listed in any of the various schedules or penalty groups of controlled substances contained in the Controlled Substances Act, and the indictments declared void did not allege why the drugs were controlled substances under the Act. We granted the State leave to file its’ motions for rehearing in order that we might reconsider several of this Court’s past decisions, namely, Ex parte Everett, supra; Ex parte McClain, 623 S.W.2d 140 (Tex.Cr.App.1981); Ex parte Roberts, 623 S.W.2d 138 (Tex.Cr.App.1980); and Ex parte Holbrook, 609 S.W.2d 541 (Tex.Cr.App.1980). The State invites us to overrule Ex parte Everett, supra; and Ex parte Holbrook, supra, claiming they are in conflict with Ex parte Roberts, supra, and Ex parte McClain, supra.
After having carefully considered the State’s motions for rehearing, we will overrule them, sustain the panel opinion, decline the State’s invitation to overrule the stated cases because there is no conflict, reaffirm the above cases, and hold that the nine indictments in issue on rehearing are fundamentally defective and void for failure to state offenses against the laws of this State.
In all but one of the nine indictments in issue on rehearing, it was alleged in pertinent part that the appellant did “unlawfully and intentionally acquire and obtain possession of a controlled substance, namely, DILAUDID by misrepresentation, fraud, forgery, deception, and subterfuge...” The remaining indictment in issue was in all things identical except it alleged the drug DESOXYN. See Art. 4476-15, Sec. 4.09(a)(3), V.A.C.S.1
*692The indictments in the remaining two convictions, which were affirmed, were not fundamentally defective because they properly alleged, not the trade names for the drugs, but the names as specifically listed in the Controlled Substances Act, eo nomine, hydromorphone and methamphetamine. Although all eleven of the indictments appear to have been prepared at or near the same time, we have been unable to ascertain from the record why the State carefully prepared the two valid indictments, but was unable to carefully prepare the remaining nine indictments in issue.
The appellant did not file leave to file a motion for rehearing in the causes affirmed, and the State makes no complaint in its motions for rehearing about the convictions that were affirmed; arguing only that the panel opinion was erroneous in holding the indictments void.
The record reflects that in each of the nine instances involved, the appellant presented forged prescriptions to employees of drug stores in order to obtain drugs, namely Dilaudid and Desoxyn, which are trade names for the controlled substances hydromorphone and methamphetamine. Neither Dilaudid nor Desoxyn are specifically listed by name in any penalty group of the Controlled Substances Act, nor was it indicated in the indictments how the substances otherwise came within the provisions of the Act, nor was it stated in the indictments that the drugs came within a particular penalty group of the Act. Cf. Ellerbee v. State, 631 S.W.2d 480 (Tex.Cr.App.1982).
Although not determinative to the disposition we make of the State’s motion for rehearing, we observe that Ex parte McClain and Ex parte Roberts, supra, involved convictions wherein the charges, for fraudulently passing to a named pharmacist a forged prescription and attempting to obtain by a forged prescription a narcotic drug, Diluadid, were brought under former penal code Art. 725b, See. 20, V.A.P.C. (1925). However, Ex parte Everett and Ex parte Holbrook, supra, involved offenses filed under Art. 4476-15, Sec. 4.09(a), supra; for obtaining the drug Dilaudid and attempting to obtain the drug Preludin by virtue of forged prescriptions. As noted, the charges at bar were also filed pursuant to Art. 4476-15, Sec. 4.09(a), supra.
Previously, by the provisions of the 1925 Penal Code, see Art. 725b, Sec. 20(1), V.A. P.C. (1925),2 in order to properly allege in a *693charging instrument that a drug was obtained or attempted to be obtained by a forged prescription, it was incumbent upon the State to specifically allege therein that a particular narcotic drug was obtained or attempted to be obtained by the forged prescription. However, under Sec. 20(5) of the former penal statute, see footnote 2, supra, which proscribed the making or uttering of any false or forged prescription or false or forged written order, it was unnecessary to specifically allege in the charging instrument that the forged prescription was for any particular drug.
This Court, in both Ex parte Roberts and Ex parte McClain, supra, in deciding whether the indictments in those causes were fundamentally defective, for failure to allege offenses pursuant to Sec. 20(1), held that the indictments were not fundamentally defective pursuant to Sec. 20(5), because the charging instruments did properly allege offenses against the law. See also Ex parte Bonsai, 623 S.W.2d 356 (Tex.Cr.App.1981).
Ex parte Holbrook, supra, and Ex parte Everett, supra, involved offenses brought pursuant to Art. 4476-15, Sec. 4.09, supra. The holdings in those causes have as their foundation the principle of law that was stated in this Court’s decision of Ex parte Wilson, 588 S.W.2d 905, 908-909 (Tex.Cr.App.1979), where the offense alleged was possession of the drug Phentermine, a drug not named per se in a penalty group of the present Controlled Substances Act. In Wilson, this Court stated the following principle:
“To state the rule generally, we hold that in a prosecution under the Controlled Substances Act [Art. 4476-15, V.A.C.S.] for the manufacture, delivery, or possession of a substance not specifically named in a penalty group but which is otherwise described in a penalty group (for example, an isomer of methamphetamine), such description is an essential element of the offense which must be alleged in the indictment in order to state an offense. The same rule applies to prosecutions under the Dangerous Drugs Act involving a drug not specifically named in Sec. 2(a) but which is otherwise decribed therein (for example, a legend drug.) [Emphasis Added].
The State, through its State Prosecuting Attorney, Hon. Robert Huttash, in the motions for rehearing he filed, in quoting from Ex parte Roberts, supra, argues that “the [name of the] particular controlled substance that the defendant was attempting to obtain is unimportant”; thus, the State asserts that the indictments in issue are not invalid instruments, but instead are valid charging instruments.
We acknowledge that this Court in Ex parte Roberts did state the following at page 139 of the opinion: “It is important to remember that the offense alleged is securing a controlled substance through fraud; the particular controlled substance that the defendant was attempting to obtain is unimportant.” The State also argues in its briefs that Everett, supra, and Holbrook, supra, should be overruled, contending those decisions are in conflict with Roberts. We disagree with the State’s argument for several reasons, and decline its invitation to overrule the above cases of this Court because we find no conflict.
The State, in its reliance upon Ex parte Roberts, supra, misreads the import of that decision. As previously noted, by the provisions of the 1925 Penal Code Statute, Art. 725b, Sec. 20(1), supra, which statute proscribed the obtaining or attempting to obtain a narcotic drug by fraud, which we find to be analogous to present Art. 4476-15, Sec. 4.09(a)(3), supra, in order to properly obtain a conviction for obtaining or attempting to obtain a drug by a forged prescription, it was incumbent upon the State to allege and prove that a particular narcotic drug was obtained or attempted to be obtained by fraud. See Ex parte Wilson, supra. However, under Sec. 20(5), of the former Penal Code, which proscribed the making or uttering of any false or forged prescription or false or forged written order, it was not necessary to allege and prove that the forged prescription was for any particular drug. In both Ex parte Rob*694erts and Ex parte McClain, the indictments under consideration were held to allege offenses pursuant to Sec. 20(5), which did not require that a forged prescription be for any particular narcotic drug; thus, there was no need to designate in the charging instrument any narcotic drug because under the statute the State was only required to allege and prove that the defendant made or uttered a false or forged prescription. Ex parte McClain specifically held that the indictment under consideration was sufficient to allege an offense under Sec. 20(5); thus, the Court in Ex parte McClain did not consider the indictment’s sufficiency pursuant to Sec. 20(1).
Although we acknowledge that the opinion in Ex parte Roberts, supra, refers to Sec. 20(1), in considering the sufficiency of the indictment in that cause, we find it does so only in characterizing the defendant’s contention in that cause. The Court specifically stated the following in Roberts: “Ex parte McClain controls the disposition of the petitioner’s case, and we hold here as we did there that the indictment sufficiently alleges an offense under the provisions of Art. 725b, Sec. 20(5), Y.A.P.C. (1925).” [Emphasis Added]. It is therefore apparent to us that the language in the State’s motions for rehearing, “the particular controlled substance that the defendant was attempting to obtain is unimportant,” which is taken from Ex parte Roberts, supra, was referring to a Sec. 20(5) allegation; not a Sec. 20(1) allegation. Since Sec. 20(5) is distinguishable from Sec. 4.09(a)(3), with which we are dealing here, the quoted language from Ex parte Roberts is inapplicable to the causes at Bar. Ex parte Wilson, supra, and its progeny, see Ex parte Everett, supra, have definitely settled the issue adversely to the State’s argument, and Ex parte Roberts provides, for the reasons stated, no solace for the State. The State’s argument is therefore overruled.
There is yet another reason for the requirement that in order to properly allege an offense under Art. 4476-15, Sec. 4.09(a)(3), supra, it is necessary to allege in the charging instrument the particular name of the drug as it is listed in the Controlled Substances Act, or to otherwise state how the drug is subject to the Act, or to indicate in the charging instrument the penalty group under which the drug is listed. Sec. 4.09(b), Id., provides for different penalties, with the penalty for the particular offense being dependent upon whether the controlled substance obtained, acquired, or attempted to be obtained by misrepresentation, fraud, forgery, deception, or subterfuge falls under Schedule I, II, III, IV, or V. A charging instrument will be held fundamentally defective if it fails to state the elements essential to determine the jurisdiction of the court to try the case. E.g., Ellerbee v. State, supra. In the instances at bar, by failing to state the statutory name of the drug acquired, obtained, or sought to be obtained by misrepresentation, fraud, forgery, deception, or subterfuge, as listed in the Controlled Substances Act, or by failing to state how the drug was nevertheless subject to the Act, or by failing to state the penalty group under which the drug is listed in the Act, the appellant was deprived of notice of the penalty that was attached to each of the particular offenses alleged against her.
We therefore hold that each of the above nine indictments are null and void.
Finding no merit in the State’s motions for rehearing, they are overruled.
. Art. 4476-15, Sec. 4.09, V.A.C.S. provides:
Sec. 4.09. (a) It is unlawful for any person knowingly or intentionally:
(1) to distribute as a registrant a controlled substance classified in Schedule I or II, except pursuant to an order form as required by Section 3.07 of this Act;
(2) to use in the course of the manufacture or distribution of a controlled substance a registration number which is fictitious, revoked, suspended, or issued to another person;
(3) to acquire, obtain, or attempt to acquire or obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge;
(4) to furnish false or fraudulent material information in, or omit any material information from, any application, report, or other document required to be kept or filed under *692this Act, or any record required to be kept by this Act; or
(5)to make, distribute, or possess any punch, die, plate, stone, or other thing designed to print, imprint, or reproduce the trademark, trade name, or other identifying mark, imprint, or device of another or any likeness of any of the foregoing upon any controlled substance or container or labeling thereof so as to render the controlled substance a counterfeit substance.
(b) An offense under Subsection (a) with respect to:
(1) a controlled substance classified in Schedule I or II is a felony of the second degree;
(2) a controlled substance classified in Schedule III is a felony of the third degree;
(3) a controlled substance classified in Schedule IV or V is a Class B misdemeanor.
. Art. 725b, Sec. 20, V.A.P.C. provides:
Sec. 20. (1) No person shall obtain or attempt to obtain a narcotic drug, or procure or attempt to procure the administration of a narcotic drug, (a) by fraud, deceit, misrepresentation, or subterfuge; or (b) by the forgery or alteration of a prescription or of any written order; or (c) by the concealment of a material fact; or (d) by the use of a false name or the giving of a false address.
(2) Information communicated to a physician in an effort unlawfully to procure a narcotic drug, or unlawfully to procure the administration of any such drug, shall not be deemed a privileged communication.
(3) No person shall willfully make a false statement in any prescription, order, report, or record, required by this Act.
(4) No person shall, for the purpose of obtaining a narcotic drug, falsely assume the title of, or represent himself to be, a manufacturer, wholesaler, apothecary, physician, dentist, veterinarian, or other authorized person.
(5) No person shall make or utter any false or forged prescription or false or forged written order.
(6) No person shall affix any false or forged label to a package or receptacle containing narcotic drugs.
(7) The provisions of this Section shall apply to all transactions relating to narcotic drugs under the provisions of Section 8 of this Act, in the same way as they apply to transactions under all other Sections.