While Marijuana Is Not Legal in Texas, It May Be Moving in that Direction

handcuffs and marijuana leaf on top of a page of thumbprints.

It is important to announce right at the top of this piece that recreational marijuana in every form is illegal in the State of Texas, and from a legal perspective, you are ill-advised to imbibe.

This said, however, you may be interested in knowing that, even in Texas – a state that is considered very conservative on the matter of marijuana – the law is inching closer to legalization.

If you are facing a marijuana charge in the State of Texas, it is a very serious matter, and it is in your best interest to work closely with an experienced Killeen criminal defense attorney from the outset.

The Law Is in Flux

According to the Texas Tribune, the state of Texas is experiencing some growing pains in relation to its 2019 law that legalized hemp but kept marijuana squarely in the illegal category.

These two parts of the cannabis plant (hemp and marijuana) are often indistinguishable in terms of how they look and how they smell, but hemp has been legalized – and marijuana decidedly has not – in Texas.

This move on the part of Texas was in keeping with a 2018 federal law that did the same thing (legalizing hemp but not marijuana). From here, what the Tribune calls widespread confusion was born.

What You Need to Know

Better understanding what all this means for you can help you protect yourself in relation to marijuana charges in Texas, which are quite serious.

The Difference between Marijuana, Hemp, and CBD

The terms hemp and marijuana are often bandied about interchangeably, and the fact that they can be nearly indistinguishable to the naked eye does not help. The only difference between hemp and marijuana, which both come from the cannabis plant, is the amount of THC – the psychoactive compound that leads to the sensation of being high – they contain.

In order for the substance to be classified as marijuana under the 2019 Texas law, the cannabis plant (or its derivative, such as CBD) must exceed a concentration of .3 percent. If the substance in question does not meet this threshold, it is considered hemp in the eyes of the law, and it is legal.

Proving that the substance you possess is hemp, however, is no easy task – as some who have been wrongfully arrested will attest.

A Note about CBD

CBD is the name used for cannabidiol, which is a non-psychoactive cannabis compound that businesses are allowed to sell legally throughout the state – as long as it contains less than .3 percent THC by dry weight. While advocates of CBD believe it offers benefits related to health conditions such as insomnia, depression, and anxiety, the U.S. Food and Drug Administration (FDA) approves cannabidiol only for treating two rare forms of epilepsy.

What the Change in the Law Means

It is currently illegal to either possess or use marijuana in any form in the State of Texas, and it has been since 1931. What changed is that the hemp law draws a distinction between hemp and marijuana.

Since this change was made, crime labs and prosecutors have had to drop hundreds of pending marijuana charges and have had to decline to prosecute many more new charges due to a lack of resources. The state simply does not have the resources necessary to precisely detect the THC content of any given substance, which makes it difficult to obtain the evidence necessary to prove marijuana charges in court.

The Governor’s Stance

Governor Greg Abbot weighed in – in response to the common opinion that the 2019 law is tantamount to decriminalizing marijuana – by claiming that prosecutors are confused about its intent. Nevertheless, prosecutions for marijuana charges dropped by more than 50 percent after the hemp law was put in place (according to data from the Texas Office of Court Administration).

Although Texas has not legalized marijuana in any way, shape, or form – nor has it decriminalized marijuana – this shift could indicate that the state may be inclined to become somewhat better aligned with many other states across the nation (that have far more lenient marijuana laws – some going so far as to legalize recreational usage).

Texas and Medical Marijuana

Texas takes a conservative approach to marijuana, even when it comes to medical marijuana. In Texas, only those with specific conditions are eligible to legally access medical marijuana through what the state calls its compassionate use program (CUP).

Medical marijuana in the state is limited to Low-THC compounds (no more than .5 percent by weight) that are only available for swallowing – not for smoking. Those medical conditions that CUP is limited to include:

  • Epilepsy

  • Terminal cancer

  • Multiple sclerosis

  • Seizure disorders

  • Autism

  • Spasticity

  • Amyotrophic lateral sclerosis

  • An incurable neurodegenerative disease

The exacting requirements in order to obtain a prescription through CUP include:

  • You must be a permanent resident of the State of Texas.

  • You must have at least one of the healthcare concerns listed.

  • A physician who is registered through CUP must prescribe medical marijuana after determining that the benefits associated with the prescription outweigh any risks in your case.

How Texas Differs from the Other States

Texas is known for going its own way, and things are no different when it comes to marijuana laws. Consider the following:

  • Marijuana is legal in 18 states across the nation and in Washington, D.C., for those over the age of 21.

  • Thirty-eight states have legalized medical marijuana to one degree or another.

  • Only three states have no laws on the books legalizing cannabis for any reason (Idaho, Nebraska, and Kansas).

  • Texas is in the next-most restrictive category, allowing only low-THC programs for medical marijuana.

Many of the states that have not legalized recreational marijuana have decriminalized (fully or partially) a variety of marijuana offenses. Even though recreational usage is against the law in these states, criminal charges are not pressed. If charged, offenders face civil penalties (as opposed to the criminal charges they would face in Texas). Civil penalties generally involve fines, drug education programs, or both.

In Texas, prosecutors are authorized to press criminal charges for even small amounts of marijuana. These charges are typically misdemeanors that can carry time behind bars and fines that exceed $1,000.

The Hemp Explosion

Since the hemp law changed in 2019, the State of Texas has seen a significant increase in hemp products and CBD derivatives. To all outward appearances, business seems to be robust. There are some issues, however, related to the transportation of marijuana that ends up being hemp.

As a result, the state and many individual cities across the state are scrambling to keep up by attempting to implement regulations and training that better prepare law enforcement to distinguish between the two substances and not to arrest those in possession of hemp, which is legal.

As a Result

As a result of the shift in the law, many counties across the State of Texas are turning their backs on lower-level possession charges. In fact, even before the new hemp law hit the books, some counties were taking a softer approach to first offenses involving a small amount of marijuana – by issuing citations and offering diversion programs that keep people out of jail.

In June of 2020, the state’s largest law enforcement agency – the Texas Department of Public Safety – did an about-face and instructed its officers to issue citations whenever possible for misdemeanor possession charges (instead of making arrests).

Diverse Approaches

Perhaps unsurprisingly, the City of Austin voted to quash most fines and arrests for possession charges related to small amounts of marijuana. In fact, they put their money where their mouth is by also putting a moratorium on city spending for testing marijuana content when small amounts are involved. Some other Texas cities like Plano, however, have doubled down and increased their substance-testing spending.

Will Marijuana Be Legal in Texas Any Time Soon?

When it comes to Texas’s relationship with marijuana, it is best to think in terms of baby steps. For example, a state representative out of El Paso introduced a House Bill in 2019 that would have put the kibosh on arresting people in possession of an ounce (or less) of marijuana and would instead make it a Class C misdemeanor that carries a $500 fine.

While the bill carried the House with a 103 to 42 vote, it died on the Senate floor – even after Abbott made it clear that he was open to a reduction in penalties for possession of small amounts of marijuana. In other words, there is some movement forward, but it could take a while to see concrete results.

What Texans Have to Say

According to a poll conducted by the University of Texas and the Texas Tribune in June of 2020, the majority of registered voters throughout Texas are prepared to vote in favor of marijuana legalization in one form or another. The breakdown looks as follows:

  • Twenty-three percent of voters polled would vote to legalize any amount of marijuana.

  • Thirty percent of voters polled would vote to legalize small amounts of marijuana.

  • Eighty percent of voters polled would vote to have more comprehensive medical marijuana laws on the books.

FAQ

When it comes to marijuana laws in the State of Texas, it is not unusual to have questions, and the answers to some of the most frequently asked questions can help.

What If I Bring Marijuana into Texas from a Legal State Like Colorado?

The State of Texas is not interested in where you got your marijuana. It remains illegal in Texas regardless of the source.

Will Texas Eventually Legalize Marijuana?

It seems nearly inevitable that Texas will slowly keep up with its less-conservative neighbors and the country at large, and the small steps forward explored here do support that idea. There is, however, no telling how long this will take. Texas has always adopted a very independent approach with its laws, and this extends to the legalization of marijuana.

What Does Decriminalization Mean?

Decriminalization does not make something legal, but it does mean that law enforcement ceases to treat whatever has been decriminalized as a criminal act. Some states have decriminalized marijuana, and criminal charges are, therefore, not likely to be levied for small amounts of the drug in those states.

When Is Possession of Marijuana a Felony in Texas?

If you are in possession of from two to four ounces of marijuana in a Drug-Free Zone in the State of Texas, you can be charged with a felony. Further, if you possess more than four ounces of marijuana in the state, it qualifies as a felony offense.

What If I Am Arrested for a Small Amount of Marijuana in Texas?

The most important point to be made here is that an arrest for marijuana in the State of Texas is a serious matter that can significantly affect your future. If you are facing a marijuana charge of any kind, you need the professional legal guidance of a dedicated criminal defense attorney on your side. As Texas laws stand right now, possession of even the smallest amount of marijuana can leave you facing up to 180 days in jail if you are convicted, and the matter is simply too important to leave to chance – or to hope for the best. While Texas is changing its tune about marijuana, it has failed to legalize it as of yet, and you certainly do not want to jump the gun.

Your Experienced Killeen Criminal Defense Attorney Will Stand Up for Your Rights

Brett Pritchard at The Law Office of Brett H. Pritchard in Killeen, Texas, is a formidable criminal defense attorney with an impressive track record of successfully guiding cases like yours toward advantageous outcomes. Your rights, your case, and your future are important, so please do not wait to contact us online or call us at (254) 781-4222 for more information today.