Marijuana Charges in Texas: FAQ

handcuffs and a marijuana leaf on top of a Texas criminal fingerprint sheet

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Brett Pritchard Law

Updated on April 25, 2023

While much of the nation is marching forward with less-restrictive marijuana laws, Texas is not budging. In the State of Texas, possession of even a small amount of marijuana can lead to serious legal consequences, which makes understanding marijuana laws in Texas important. In this effort, knowing the answers to some of the most frequently asked questions can help.

If you are facing a possession charge, reach out to an experienced Killeen criminal defense attorney with considerable experience successfully guiding cases like yours toward favorable resolutions. Following professional legal counsel is the best way to protect your legal rights and your future.

What is a drug possession charge?

Texas uses very broad terms to define the charge of possession, which allows them considerable leeway when pressing charges. Consider the legal definition of possession for an example: “possession means actual care, custody, control, or management” of the drug in question.

Within this context, simply having drugs in your home or vehicle can lead to possession charges. In addition, the term “management” is used to ensure that you do not have to be the illegal drug’s owner to get slapped with a possession charge.

What are the drug penalty groups?

Texas employs drug penalty groups to classify controlled substances. Penalty groups 1 and 1A come with the harshest penalties.

  • Penalty group 1 includes drugs with no medical purpose, such as meth.

  • Penalty group 1A includes LSD and its salts and isomers.

  • Penalty group 2 includes marijuana.

The higher the penalty group and the larger the amount of the drug in question, the more serious the charge and the potential penalties.

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.

Is CBD illegal in Texas?

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 doesn’t make distinctions. All products with more than 0.3 percent THC are illegal and will be treated the same.

What is the difference between hemp, marijuana, CBD, and delta-8?

There is a lot of confusion in the State of Texas about what the difference is between hemp, marijuana, CBD, and delta-8, and the laws add an additional layer of challenge.

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 0.3 percent threshold, it is considered hemp. If the substance contains more than 0.3 percent THC, it is marijuana.

While hemp is now legal in Texas, marijuana decidedly isn’t – other than for exacting medical purposes that require a prescription.

The amount of THC in the substance in question cannot be determined without lab testing, which makes it rather unlikely to press charges for a very small amount of a substance that may or may not be marijuana. However, keep in mind that these circumstances are not unheard of.

CBD refers to cannabidiol, 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.

Delta-8, on the other hand, refers to a naturally produced substance in the cannabis plant, which has a mild psychoactive effect that can be enhanced in a lab. Delta-8 is currently not classified as an illegal substance in Texas, which has played a role in its spike in popularity, but there is no guarantee that this status will hold – lawsuits are pending.

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

  • An incurable neurodegenerative disease

  • Cancer

  • Post-traumatic stress disorder (PTSD)

Until recently, PTSD was not on this list, and, in order to qualify, cancer diagnoses 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) with valid prescriptions are exempt from criminal charges concerning 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 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 may have an impact. 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. In fact, the state recently increased 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 severe 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 with drugs are not arrested but are, instead, issued citations requiring that an appearance at a scheduled court date.

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 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 4 ounces to 5 pounds of marijuana, the charge is a felony that carries a mandatory minimum of 180 days (and maximum of 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 5 to 50 pounds of marijuana, the charge is a felony that carries a mandatory minimum of 2 years (and maximum of 10 years) in prison and fines of up to $10,000.

  • For possession of 50 to 2,000 pounds of marijuana, the charge is a felony that carries a mandatory minimum of 2 years (and maximum of 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. 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. This distinction means it would not be reasonable to believe that you are not guilty – making it a very high legal bar.

It is not enough that the police find the marijuana near you. The prosecution must demonstrate that the drug was in your possession and that you had what is known as dominion and control over the drug. Evidence like the following can help firm up the prosecution’s case:

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. Consider these common procedural errors.

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 anything else), the police need a warrant. Only the 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 comply.

Violation of Miranda Rights

If the police arrest you, 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.

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. 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) 781-4222 today to learn more about how we can help you.

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