By: Mark Diaz
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Texas Cannabis Laws – How Harsh Are The Penalties?
What You Need To Know About Texas Cannabis Laws
Cannabis laws in Texas are harsh – even though it is a popular recreational drug despite the fact that it is classified as a prohibited “controlled substance” under federal and Texas state law. In recent years, a number of states have moved to decriminalize marijuana possession and/or allow possession of small amounts of cannabis for medicinal or even recreational purposes. For Texas, marijuana remains strictly illegal, with a couple of narrow exceptions to be detailed later herein.
If you are caught possessing, growing, selling, cultivating, or otherwise distributing marijuana in Texas, you may and likely will be facing criminal charges. How severe a charge is will depend on the amount and circumstances of your arrest. In this article, we will briefly explain the various degrees of marijuana-related criminal offenses in Texas and the penalties you could face at each level.
Simple Possession of cannabis
At the lowest end of the criminal justice scale under Texas cannabis laws are offenses for simple possession of marijuana. Here, we are basically talking about someone caught with 2 ounces or less of cannabis. As you will see, weight is often the most critical factor in determining the harshness of a sentence for marijuana-related crimes in Texas.
If a person has 2 ounces or less of marijuana, they face a Class B misdemeanor charge for drug possession. This is essentially one step above a traffic violation. It does carry the possibility of jail time–up to 180 days or roughly 6 months–and a fine that cannot be more than $2,000.
If the person has between 2 and 4 ounces of marijuana, they face a Class A misdemeanor charge, which is the highest degree of non-felony criminal offense in the Texas Penal Code. The maximum penalties here are basically double that of a Class B misdemeanor: Up to 1 year in jail and a fine not to exceed $4,000.
Felony Possession of cannabis
Once you get above 4 ounces of cannabis, you have moved squarely into felony territory. One reason for this is that state law assumes that anyone possessing a greater quantity of marijuana is not doing so for recreational or medicinal purposes–but rather because they plan to distribute cannabis to others.
In Texas, there are four degrees of felonies. The lowest degree is what is known as a “state jail felony.” This carries a sentencing range of between 180 days and 2 years in prison and a fine of up to $10,000. For cannabis possession, the amount of marijuana involved at this level falls between 4 ounces and 5 pounds.
At the next level, a third-degree felony, a defendant faces between 2 and 10 years in prison. The weight range for third-degree felony cannabis possession is between 5 and 50 pounds.
Moving one step up to a second-degree felony, you are looking at up to 20 years in prison if a defendant is caught with between 50 and 2,000 pounds of marijuana. The maximum possible jail sentence here is 20 years. It should also be noted that second and third-degree felony drug possession carry the same maximum fine of $10,000 as a state jail felony.
Finally, if a defendant has more than 2,000 pounds of cannabis, Texas considers that a first-degree felony punishable by between 5 and 99 years in prison–essentially a life sentence and a potential fine not to exceed $50,000.
It is also possible to be criminally prosecuted, convicted, and sentenced for possession of certain items classified as “drug paraphernalia.” With respect to marijuana, such paraphernalia can include papers and splints used to roll marijuana joints, pipes, bongs, and even grinders used to break up the cannabis plants.
Fortunately, possession of drug paraphernalia will not, in and of itself, land you in prison in most cases. Simple possession of drug paraphernalia is only a Class C misdemeanor charge under Texas law. This carries no jail time but it may result in a fine of no more than $500. Nonetheless, the charge can remain on your record indefinitely if not handled properly with a lawyer’s help.
What About Medical Cannabis?
In 2015, the Texas legislature adopted a highly restricted medical cannabis law. This removes criminal penalties for cannabis possession for certain “qualified patients.” To be clear, this exemption from the regular marijuana laws is quite limited and in fact, does not allow individuals to cultivate or possess their own marijuana.
What Texas law actually says is that patients with certain medical conditions may obtain a doctor’s prescription for what is known as low-THC cannabis oil. THC refers to the active ingredient in cannabis. Under Texas law, a doctor can only prescribe oils that contain no more than 0.5 percent THC. In practice, many doctors will not even write such prescriptions, as cannabis remains a controlled substance under federal law, and physicians risk losing their DEA licenses if they agree to give patients even low-THC cannabis oil.
The original 2015 law further restricted low-THC cannabis oil prescriptions to patients with epilepsy. In 2019, the legislature agreed to expand the law to cover several other qualifying conditions, including Alzheimer’s disease, ALS (Lou Gehrig’s disease), multiple sclerosis, and terminal forms of cancer.
Can Prosecutors Decline to Bring Cannabis Possession Cases?
You may have read that certain Texas counties have decided to stop charging simple cannabis possession cases. This is somewhat true, but it is important to understand exactly what has taken place. Officials in some localities, notably Harris County and the City of Austin, have altered their enforcement policies to avoid bringing criminal charges against individuals caught with 2 ounces or less of cannabis. But this is not a repudiation of existing state or federal law on the subject. These are merely policies designed to guide local law enforcement in the localities in which they operate.
In Harris County, for instance, the District Attorney there announced a new policy upon taking office in 2017 creating a “Medical Marijuana Diversion Program.” This program allows some persons who would otherwise face arrest and possible jail time to complete a series of classes instead. This program is only available in Class A or Class B cannabis possession cases where the person is not charged with other crimes arising from the same detention. After successful completion of the program, a person has the ability to have their case dismissed.
That being said, if you have been arrested in Galveston County or any other Texas jurisdiction, you cannot assume you will receive such lenient treatment. Each Texas locality enforces cannabis possession laws in its own way. So, what may not be a big deal in one county can easily become a felony charge in another.
Defenses to Cannabis Possession Charges
If you have been arrested for cannabis possession, it is critical that you contact an experienced Galveston criminal defense attorney that knows Texas cannabis laws as soon as possible. Especially if you are facing possible jail time, an attorney can fully investigate the circumstances of your case and advise you on possible defenses, which may include the following:
- The police officer who detained you for cannabis possession lacked a “reasonable suspicion” to stop you in the first place.
- Even if the officer had reasonable suspicion to detain you, they lacked “probable cause” to search you or your vehicle for drugs without a warrant or your consent.
- Any drugs allegedly found on you were not properly documented or preserved for use as evidence.
- At trial, the prosecution cannot prove certain key elements of their case, such as the actual amount of cannabis involved.
If you need legal representation in connection with any criminal drug matter, contact Mark Diaz today at (409) 515-6170 to schedule a free confidential consultation.