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

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Brett Pritchard Law

Updated on June 15, 2023

It is important to announce right from the start 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 smell, but hemp has been legalized in Texas– and marijuana decidedly has not.

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 Texas 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. For more information about marijuana laws in Texas, contact a Killeen criminal defense attorney.

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 identical 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.

For a 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. Because hemp and marijuana look and smell virtually the same, it is nearly impossible to distinguish between them without lab testing. In other words, slapping someone with a simple possession charge is no longer as simple as it once was.

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.


Delta-8 is gaining in popularity in Texas for its ability to effect a high that is similar to marijuana's but is, at least for now, legal. Delta-8 is a psychoactive substance that cannabis plants produce in small amounts and is the natural version of the synthetic substance that is commonly called Spice or K2.

CBD distributors often include delta-8 products in their inventories because the substance’s low concentration of THC should classify related products squarely in the lawful marijuana extract category. However, the State has pushed back on this assumption, and the fate of delta-8 remains in the air.

While the Texas Department of State Health Services (DSHS) attempted to outlaw this cannabis derivative, an ongoing lawsuit against the Department denies its right to outlaw the substance.

In this case, a district court judge found that DSHS did not adhere to the necessary requirements – as they relate to rulemaking – in its efforts to include delta-8 on its list of illegal drugs. An injunction remains in effect until the matter is decided in court, but to date, no court date has been set.

It is important to note that a federal court in California found that delta-8 products that remain below the .3 percent THC threshold fall under the hemp classification and, as a result, are legal at the federal level.

Because these laws are in motion, it is essential to work with a Killeen criminal defense attorney when facing marijuana charges.

What the Change in the Law Means

It is currently illegal to 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 distinguishes hemp and marijuana.

While this opened up the market for CBD sales across Texas, there is more to the story. Buying, possessing, and selling hemp is perfectly legal, but the manufacturing and processing of smokable hemp in Texas is against the law.

Since this change was made, crime labs and prosecutors have had to drop hundreds of pending marijuana charges and 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. CUP is limited to the following medical conditions:

  • PTSD

  • Epilepsy

  • Terminal cancer

  • Multiple sclerosis

  • Seizure disorders

  • Autism

  • Spasticity

  • Amyotrophic lateral sclerosis

  • An incurable neurodegenerative disease

The exacting requirements to obtain a prescription through CUP include these restrictions:

  • 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.

If you have concerns about possession of marijuana for medical purposes, it is always wise to consult with a skilled Killeen criminal defense attorney.

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 for those over the age of 21 in 23 states nationwide, in Washington, D.C., and in Guam.

  • Medical marijuana has been legalized in 38 states 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.

Across states, legalization takes many different forms and involves a wide range of rules, regulations, and taxes. Because marijuana does remain illegal at the federal level, there are fundamental stumbling blocks to legalization, including banking, which requires federal insurance.

Many 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.

However, wrongful arrests for hemp possession are still abundant. If you are facing any charge related to drug possession, contact a Killeen criminal defense attorney right away.

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 to Marijana Possession

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.

However, while the legalization of hemp in Texas did not decriminalize marijuana, it did precipitate a significant decrease in marijuana-related arrests. Many counties lack the resources necessary to differentiate between legal hemp and illegal marijuana, and some have simply stopped taking on such cases.

Prior to the legalization of hemp, the numbers in terms of misdemeanor marijuana possession charges soared above 5,000 cases on average per month. After the 2019 ruling, however, these numbers dipped below 2,000. From January to May of 2022, the average number of monthly cases was 1,745 (according to the Texas Office of Court Administration).

Marijuana Charges

Simple possession charges in Texas come with hefty penalties. Consider the following:

  • If you are charged with possession of up to 2 ounces of marijuana, it is a Class B misdemeanor, which comes with fines of up to $2,000 and a sentence of up to 180 days behind bars.

  • If you are charged with possession of from 2 to 4 ounces of marijuana, it is a Class A misdemeanor, which comes with fines of up to $4,00 and a sentence of up to a year behind bars.

  • Possession of any amount of marijuana over 4 ounces is a felony charge, and the fines and penalties become even more considerable.

  • Possession of drug paraphernalia – like pipes and hitters – alone is a Class C misdemeanor, which comes with fines of up to $500 but with no jail sentence.

Any level of criminal conviction will have serious consequences. Protect your rights when facing criminal charges by working closely with a Killeen criminal defense attorney.

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.

Both sides of the aisle came together during the 2021 legislative session in a renewed effort to decrease sentencing severity for possession of marijuana in Texas. While several bills passed in the House, no new laws were forthcoming.

What Texans Have to Say about Legalizing Marijuana

According to a poll conducted by the University of Texas and the Texas Tribune in June 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.

The Dallas Morning News 2022 poll achieved similar results with the following statistics:

  • Eighty-three percent of voters in Texas support legalizing medical marijuana.

  • Sixty percent of voters in Texas support legalizing recreational marijuana.

Marijuana Possession 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. You can also contact a Killeen criminal defense attorney to answer questions specific to your situation.

Is There an Amount of Marijuana that Is Legal in Texas?

No amount of marijuana is legal in Texas. While you are less likely to face a criminal charge for possessing a small amount of the drug, there are no guarantees. Even being in possession of paraphernalia, such as a pipe, can land you with a misdemeanor charge.

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. If you are caught with it in Texas, you will be in just as much legal hot water if you purchased it legally as you would be if you purchased it illegally.

Further, legal marijuana generally comes with the THC level stamped right on the packaging, which helps to clarify that it is not hemp.

If you’ve been arrested for possession of marijuana bought in another state, put your best foot forward by working with a Killeen criminal defense lawyer.

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.

Texas has not passed legislation for drug decriminalization, so possessing any amount of marijuana can lead to criminal charges. If you face criminal charges regarding marijuana possession, contact a Killeen criminal defense lawyer.

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 anywhere in the state, it qualifies as a felony offense.

I’m Facing Criminal Charges Related to Marijuana. What Should I Do First?

One of the most important steps you can take if you are facing a criminal charge of any kind is reaching out for the skilled legal guidance of a dedicated Killeen criminal defense attorney with considerable experience successfully guiding cases like yours toward optimal outcomes.

CanĀ I Talk My Way out of Drug-Related Charges?

The police officers questioning you would like you to believe that the issue at hand is simply a misunderstanding and that, by speaking up, you can make the matter go away. The truth is, however, that anything you say is far more likely to work against you than help you.

You have the legal right to remain silent and to have an attorney present, and you are well advised to avail yourself of both these rights very early in the process.

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.

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