Marijuana Charges in Texas: FAQ


While much of the nation is marching forward with less-restrictive marijuana laws, Texas is not part of this movement. In the State of Texas, possession of even a small amount of marijuana can lead to fairly serious legal consequences, which makes understanding marijuana laws in Texas important, and the answers to some of the most frequently asked questions can help. If you are facing a possession charge, reaching out to an experienced Killeen criminal defense attorney who has considerable experience successfully guiding cases like yours toward favorable resolutions is the best way to protect your legal rights and your future.

Is marijuana illegal under every circumstance?

All recreational marijuana is illegal in Texas. There are no exceptions. In 2019, however, Texas did change the definition of marijuana, and as such, a plant that contains less than 0.3 percent of THC (the main psychoactive compound in marijuana) is considered hemp, which is not illegal in the state. Nonetheless, it is illegal to possess any other substance that contains any THC whatsoever, and this includes edibles, wax, and vape pen cartridges.

What does decriminalization mean?

Decriminalization refers to the legal action or process of no longer considering something – such as possession of a small amount of marijuana – a criminal offense. While many states have taken this stance in relation to marijuana in recent years, Texas is not among them.

What about CBD?

Cannabidiol (CBD) oil is legal in the State of Texas, but there is a caveat to this legality. CBD products do not undergo standard monitoring or testing, which means the CBD products that you have on you could feasibly contain THC, rendering them illegal.

Does the State of Texas consider cannabis, marijuana, and weed the same?

As long as the product in question has more than the 0.3 percent limit of THC, the State of Texas views them all the same, which translates to illegal.

What is the difference between hemp, CBD, and marijuana?

The fact is that hemp and marijuana are typically indistinguishable from one another in terms of both looks and smell for the simple reason that they come from the same plant. The difference between the two is the amount of THC each contains. If the substance in question does not hit the .3 percent threshold, it is considered hemp. CBD refers to a non-psychoactive compound that is derived from the marijuana plant, and that can be sold legally as long as its THC levels remain below the limit. While advocates of CBD tout its benefits, the U.S. Food and Drug Administration does not.

What about medical marijuana?

In Texas, even medical marijuana is seriously restricted. Under the appropriate circumstances, medical professionals who have the necessary qualifications can legally prescribe only low-THC cannabis (that is not more than 1 percent THC by weight) for permanent residents of the state who have one of the following serious conditions:

  • Autism

  • Epilepsy or another kind of seizure disorder

  • Multiple sclerosis or amyotrophic lateral sclerosis

  • A neurodegenerative disease that is incurable

  • Cancer

  • Post-traumatic stress disorder (PTSD)

Until recently, PTSD was not on this list, and in order to qualify, the cancer diagnosis had to be terminal.

What is the Compassionate Use Program in Texas?

In 2015, Texas set up the Texas Compassionate Use Program (CUP), which operates a secure online registry of those physicians who are qualified to prescribe low-THC marijuana to those patients who meet the required criteria.

Licensed Cultivators Only

Patients who qualify for CUP are not authorized to grow their own cannabis. Instead, only licensed cultivators are authorized to grow and produce the low-THC marijuana, which can only be purchased legally through an appropriately licensed dispensing operation.

No Smoking

The low-THC marijuana available through the compassionate use program cannot be smoked. Only medical marijuana (in one form or another) that is intended to be swallowed is legally allowed.

Legal Protections

Those patients (and their legal guardians) who have valid prescriptions are exempt from criminal charges in relation to the possession of low-THC cannabis.

Can I bring marijuana that I purchased legally in another state into Texas?

Bringing marijuana that you bought legally in another state, such as in Colorado, into Texas is against the law. Recreational marijuana is illegal in Texas – period.

Will Texas ever legalize marijuana?

While Texas has always gone its own way, the push to decriminalize marijuana across the nation is not lost on the state. There are signs that Texas may reduce charges and attendant fines and penalties for possession of small amounts of marijuana in the not-too-distant future, and the state did recently increase the legal THC limit for medical marijuana (from .5 to 1 percent). Eventually, Texas is likely to be caught up in the wave of legalization across the country, but until that time, it is important to take the state’s serious stance on marijuana seriously.

Can I be arrested for a small amount of marijuana?

Often, officers use a cite and release approach for those caught in possession of small amounts of marijuana. This means that those caught in possession are not arrested but are, instead, issued citations, which require that they show up for their scheduled court dates. It is important to note here, however, that even a misdemeanor possession charge can lead to a jail term of up to a year and fines of up to $4,000. Further, there is no guarantee that you will not be arrested if you are caught in possession of even a very small amount of marijuana. The bottom line is that it remains illegal to possess recreational marijuana anywhere in the State of Texas.

What kind of sentence will I face for a possession conviction?

The following charges and sentences apply for possession of marijuana in Texas:

  • For possession of 2 ounces or less of marijuana, the charge is a Class B misdemeanor that carries up to 180 days in jail and fines of up to $2,000.

  • For possession of from 2 to 4 ounces of marijuana, the charge is a Class A misdemeanor that carries up to 1 year in jail and fines of up to $4,000.

  • For possession of from 4 ounces to 5 pounds of marijuana, the charge is a felony that carries a mandatory minimum of 180 days (and up to 2 years) in prison and fines of up to $10,000. Once the weight of the marijuana in your possession exceeds 4 ounces, the consequences you face stiffen considerably.

  • For possession of from 5 to 50 pounds of marijuana, the charge is a felony that carries a mandatory minimum of 2 years (and up to 10 years) in prison and fines of up to $10,000.

  • For possession of from 50 to 2,000 pounds of marijuana, the charge is a felony that carries a mandatory minimum of 2 years (and up to 20 years) in prison and fines of up to $10,000.

  • For possession of more than 2,000 pounds of marijuana, the charge is a felony that carries a mandatory minimum of 5 years (and up to 99 years) in prison and fines of up to $10,000.

It is fair to say that Texas takes its marijuana laws exceptionally seriously.

How do I fight a marijuana possession charge in Texas?

If you are facing a marijuana possession charge in Texas, the consequences of a conviction are far too serious not to bring your strongest defense, and defense strategies tend to break down into two basic categories.

Insufficient Evidence

In order for the prosecution to convict you on a possession charge, the state must be able to prove your guilt beyond a reasonable doubt, which means it would not be reasonable to believe otherwise – making it a very high legal bar. Further, it is not enough that the police find the marijuana near you – the prosecution must demonstrate not only that the drug was in your possession but also that you had what is known as dominion and control over it. Evidence like the following can help firm up the prosecution’s case:

  • You were found in possession of drug paraphernalia.

  • The marijuana was found on your person.

  • Your fingerprints were on the drug’s container.

A skilled criminal defense attorney will use every tool at his or her disposal to poke holes in the prosecution’s evidence and its assertion that the marijuana in question belonged to you in the first place.

Procedural Errors

When the police arrest you, there are wide-ranging procedural rules and regulations they are required to follow, and if they fail to do so, it can significantly bolster your defense. Some of the most common procedural errors include:

  • Unlawful Search and Seizure – The police are restrained by our Fourth Amendment rights to protection from unlawful search and seizure. In order to search your car or home for drugs (or for anything else), the police need a warrant. Only that evidence that is in the arresting officer’s plain view, such as anything that is on display on the dashboard of your car, is evidence that is considered legally obtained (without a warrant). Something found in your trunk or glove box is not considered in plain view. If an officer requests that you pop your trunk (and he or she does not have a warrant backing up the request), you are not required to comply – and you should not.

  • Violation of Miranda Rights – If you are arrested by the police, they are legally bound to read you what is known as your Miranda rights, which inform you of your right to remain silent and your right to have an attorney present. It is in your best interest to invoke both of these rights, and in the State of Texas, it is necessary to verbally let the officer know that you are taking him or her up on your right to remain silent (rather than by simply not speaking).

  • Inadequate or Missing Crime Lab Analysis – The fact is that marijuana and hemp are virtually indistinguishable from one another, but one is against the law, and the other is not. If the prosecution fails to have the necessary testing run to determine exactly what the substance in question is, it can lead to a case dismissal. Further, the testing itself can be called into question, including citing issues about the lab’s overall reliability, whether or not the samples were handled correctly, and whether or not the samples were tainted in the testing process.

  • Mishandling of Evidence – From the time the police gather the evidence in your case to the time that it is stored appropriately, there is plenty of room for it to be mishandled, for it to be destroyed, or even for it to disappear. If the prosecution fails to handle the evidence in your case correctly, there may be no case left.

  • Police Corruption – Although it is difficult to prove and is not common, police corruption sometimes raises its ugly head, and officers have been known to plant drugs on suspects. While officers typically will not turn on one another, your attorney will dive into your arresting officer’s record (and any past abuses) – if you believe corruption may be at play – in defense of your legal rights and in support of your case’s most advantageous resolution.

  • Entrapment – Entrapment can also be a concern. While police officers have the legal right to engage in certain kinds of sting operations (no matter how controversial), they cannot induce or coerce you to purchase an illegal drug in order to subsequently arrest you for doing so (which amounts to entrapment).

Reach out to an Experienced Killeen Criminal Defense Attorney Today

Brett Pritchard at The Law Office of Brett H. Pritchard in Killeen, Texas, is a seasoned criminal defense attorney with an impressive track record successfully defending his clients’ legal rights – in determined pursuit of beneficial outcomes. Your case is important, so please don’t wait to contact us online or call us at 254-501-4040 today to learn more about what we can do to help you.

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