Updated on January 12, 2023
The country at large has softened its approach to marijuana somewhat in recent years, which may leave you wondering what this means for you in the State of Texas.
While you are correct that marijuana has been fully legalized in some states – even a neighboring state – and that still others have decriminalized recreational marijuana, Texas takes a different approach. Recreational marijuana is not legal in the State of Texas, and medical marijuana remains highly regulated.
Better understanding the laws in Texas can help you better protect yourself from criminal charges, and if you are facing a marijuana charge, it is time to consult with an experienced Killeen criminal defense attorney.
Against the Law
In the State of Texas, marijuana (even a little bit – do not fool yourself) is against the law in the same way that it is against the law to drive drunk. A marijuana conviction can land you in jail, can have a profound effect on your future, and can limit your career options.
Many people take the country’s general lightening of restrictions to mean that Texas has done the same, but this has no bearing in reality. Ultimately, the law states that the possession of marijuana is prohibited, which makes it a crime to knowingly or intentionally possess a usable amount.
A usable amount in this context means virtually any amount, including a loose bit of pot that could be put in a pipe (or used in any other way). There really is no loophole here. While Governor Abbott has expressed his own support for the decriminalization of small amounts of marijuana, this attitude is not – to date – reflected in the state’s laws.
A marijuana conviction can lead to all the following difficult consequences:
Time in jail
A criminal record
Social consequences, including limited job opportunities, difficulty renting a home, limited education opportunities, loss of overall social standing, the loss of professional licensure, and much more
Marijuana Is Its Own Drug Category
Marijuana is treated a bit differently in Texas in the sense that it makes up its own category of a drug in the Texas Health and Safety Code. The drug is defined by the state as any cannabis sativa plant, which means all the following:
A plant growing in the ground or in a pot
Marijuana that is dried or in any other state (including the plant’s seeds)
Marijuana in any configuration (such as in joint form, in a baggy, or in a fancy package from a pot store in a legal state)
Texas does not miss a trick on this one.
Is It Marijuana?
Most other drugs in the State of Texas must be sent to a lab for analysis in order to identify them as illegal. Marijuana, however, is a different matter.
Texas courts have held that the police are qualified to positively identify marijuana by simply eyeballing and smelling it – as a result of their experience and training. Generally, marijuana is only sent to a lab when there is a lot of it, and an accurate weight is required.
Hemp Is an Exception
Congress federally legalized hemp in the 2018 Farm Bill, and the State of Texas followed suit.
The difference between cannabis (or marijuana) and hemp is the amount of the active ingredient – THC – which must not cross the threshold of 0.3 percent per dry weight to remain in the legal category of hemp.
While hemp is legal – including in vape form – there is some controversy in the State of Texas related to hemp that is manufactured for smoking purposes that continues to arise.
There Is No Visible Difference between Hemp and Marijuana
The only difference between hemp and marijuana is the level of THC in the product, and there is no visible difference or difference in terms of their smell.
Yet, in the State of Texas, the police are more likely to identify hemp as marijuana and to worry about the distinction after you have been arrested and charged, which makes the distinction between hemp and marijuana less beneficial than you may think.
The Charge Range
The marijuana possession charge you face will depend upon the amount you possess, and the more marijuana involved, the more serious the charge naturally is. The relevant charges and penalties include:
Possession of 2 ounces or less of marijuana is a Class B misdemeanor, and if convicted, you face up to 180 days in county jail and fines of up to $2,000 – and the State of Texas is just getting started.
Possession of from 2 ounces to less than 4 ounces of marijuana is a Class A misdemeanor, and if convicted, you face up to 1 year in county jail and fines of up to $4,000.
Possession of more than 4 ounces of marijuana but less than 5 pounds is a state jail felony, and if convicted, you face from 180 days to 2 years in a state jail and fines of up to $10,000.
Possession of more than 5 pounds but less than 50 pounds of marijuana is a third-degree felony, and if convicted, you face from 2 to 10 years in state prison and fines of up to $10,000.
Possession of more than 50 pounds but less than 2,000 pounds of marijuana is a second-degree felony, and if convicted, you face from 2 to 20 years in state prison and fines of up to $10,000.
Possession of more than 2,000 pounds of marijuana is a first-degree felony, and if convicted, you face from 5 to 99 years in state prison and fines of up to $50,000.
While marijuana charges in Texas are some of the harshest in the nation, they can be enhanced in a variety of ways that include prior convictions and drug-free zones.
If you have any prior convictions – regardless of what the conviction is for – it can enhance your marijuana possession charge.
A Felony Conviction
If the current charge you face is a felony and you have a prior felony offense of any kind, it can enhance your current penalties, including:
If you are facing a third-degree felony charge, the penalties are increased to the range for a second-degree felony.
If you are facing a second-degree felony charge, the penalties are increased to the range for a first-degree felony.
If you are already facing a first-degree felony charge, the minimum penalty you face is increased from 5 to 15 years (becoming 15 to 99 years).
If you have two prior felony convictions, the minimum penalty you face is increased to 25 years (becoming 25 to 99 years). This is typically referred to as habitual felon, but the second felony conviction must have come after the first had already been finalized – and the second offense must have been committed after the prior conviction was finalized.
If the charge you face is a state jail felony, you get one free pass, which means that your penalties can only be enhanced if you already have two or more state jail felony convictions. If this is the case, your penalties are increased to those for a third-degree felony, which is 2 to 10 years.
A Misdemeanor Conviction
Most marijuana charges in Texas are misdemeanors, and enhancements increase both the jail sentence and the fines for a conviction (for either a prior misdemeanor or felony offense). Consider the following:
If you are facing a Class-B misdemeanor charge (for less than 2 ounces), the minimum penalty you face becomes 30 days in jail (with the maximum holding at 180 days in jail and with the fines holding at $2,000).
If you are facing a Class-A misdemeanor charge (for from 2 to 4 ounces), the minimum penalty you face increases to 90 days (with the maximum holding at one year and with the fines holding at $4,000).
If you are charged with possession of marijuana – or any other controlled substance – in what is identified as a drug-free zone in Texas, you can face charge enhancements. These drug-free zones include:
Within 1,000 feet of any property that is owned, leased, or rented by a school or school board or within 1,000 feet of the premises of a public or private playground or youth center
On a school bus
In relation to the 1,000-feet enhancement, it does not hold if you were inside a private residence at the time (and there were no children present).
Playground in this context refers to any outdoor facility that is not on school premises, that is intended for recreational use, that is open to the public, and that contains at least three or more playstations intended for children’s recreation, such as slides, swing sets, and teeter-totters.
A youth center in this context refers to any recreational facility or gymnasium that is intended for the primary use of those aged 17 and younger and that regularly provides athletic, cultural, or civic activities.
When you think about marijuana charges, you may focus on the legal consequences of a conviction, but there are also considerable social and other collateral consequences that come later, and that must be factored in.
Suspension of Your Driver’s License
A conviction for possession of marijuana can lead to a six-month suspension of your driver’s license, which makes getting to and from work and getting around in general exceptionally difficult, and that can seriously interfere with your career.
Many people mistakenly believe that a misdemeanor is not a big deal in the scheme of things (as it relates to a marijuana conviction), but the truth is that it can negatively affect your social standing overall and can limit your career options.
The fact is that your conviction is a matter of public record, which means prospective employers can look the information up, and even a misdemeanor conviction can demolish your chances of getting that dream job you have been angling for. Further, many job applications ask outright if the applicant has ever been convicted of a crime, and this includes misdemeanors.
Lost Educational Opportunities
A marijuana conviction can stop your educational opportunities in their tracks by limiting – or shutting down – your ability to receive federal financial aid.
While your eligibility to apply for aid is restored upon release from jail for most charges, the same is not necessarily true for drug-related charges – especially if you were convicted while receiving federal student aid in the form of loans, grants, or work-study in the first place.
Successful completion of an approved drug rehabilitation program – or by passing two unannounced drug tests that are administered by an approved drug rehabilitation program – can help you regain early eligibility for financial aid, however.
It must also be noted that a drug conviction can make gaining acceptance into the school of your choice more difficult and can leave you ineligible to live on campus if you are accepted.
Disposing of Marijuana Charges
Generally, there are options available for disposing of a marijuana charge. In fact, the chances that a first offense will land you in jail are quite slim, but this does not mean that a conviction is no big deal – it is. The consequences of a possession charge – even if you do not face any time behind bars – are simply too great not to bring your strongest defense from the outset.
Many counties throughout the State of Texas have what are known as pretrial diversion programs, and some are more formal than others.
The way pretrial diversion generally works is by requiring you to officially enter into an agreement with either the prosecution or the court. This agreement will require you to meet specific conditions, and in return, your case will be dropped (either immediately or after you fulfill the conditions – depending upon the situation).
With pretrial diversion, you avoid going to court, and you know the outcome of your case, but you may have to plead guilty to the charge levied against you, which can have serious social ramifications that should not be taken lightly). Conditions of pretrial diversion generally include:
Participation in community service, which typically means volunteering at a nonprofit agency and providing proof of your volunteer work
Submission to drug and alcohol testing (typically via random urine tests)
Completion of one or more drug and alcohol awareness classes
Depending upon the circumstances of your case, a pretrial diversion may or may not be a good option for you, and your dedicated criminal defense attorney will help you make the right choices for you – in light of your legal rights and the strength of your defense.
Probation refers to formal supervision in the community – rather than going to jail for the charge in question. Probation generally requires you to report to a probation officer on a monthly basis – which prior to COVID-19 usually meant physically going to the probation office and meeting with the officer (this requirement may or may not be modified in response to COVID).
Your probation officer is responsible for checking on your progress and ensuring that you are complying with the conditions included in your probation. The conditions of probation often include those set forth in a pretrial diversion in addition to the following:
A requirement to either work or go to school
A requirement to keep your probation officer updated regarding your address
A requirement to adhere to a curfew (potentially)
Payment of your court costs and any fines imposed
Payment of a monthly probation fee
It Is Time to Consult with an Experienced Killeen Criminal Defense Lawyer
If you are facing a marijuana possession charge, Brett Pritchard at The Law Office of Brett H. Pritchard in Killeen, Texas, is an accomplished criminal defense lawyer who takes great pride in his impressive experience helping clients like you obtain favorable case resolutions.