Conroe Criminal Defense Attorney - Is Marijuana still illegal in Texas in 2024?
Conroe Criminal Defense Attorney - Is Marijuana still illegal in Texas in 2024?
Conroe Criminal Defense Attorney Brian Foley - Board Certified in Criminal Law
One question that people have all the time is, "Does Texas still prosecute for marijuana in 2024?"
The short answer is, yes. Texas still criminalizes the possession of small amounts of marijuana under Texas Health and Safety Code Chapter 481.121. The punishment ranges are dependent upon the weight of the marijuana that is possessed. Most cases are 2 ounces or less. We would call this a personal use case down at the courthouse and most of the time we are able to get cases like this into a position where the cases can be dismissed and expunged off of our client's records. Normally the goal for someone who has never been arrested before is to emerge from the case with a clean record.
Weight | Offense Level | Punishment Range | Probation |
|---|---|---|---|
2 oz. or less | Class B Misdemeanor | 0-180 days in jail and up to a $2,000 fine | up to 2 years of probation |
2 - 4 oz. | Class A Misdemeanor | 0-365 days in jail and up to a $4,000 fine | up to 2 years of probation |
4 oz. - 5 lbs. | State Jail Felony | 180 days - 2 years in a state jail facility and up to a $10,000 fine | up to 5 years of probation |
5 - 50 lbs. | Third Degree Felony | 2-10 years in prison and up to a $10,000 fine | up to 10 years of probation |
50 - 2000 lbs | Second Degree Felony | 2-20 years in prison | up to 10 years of probation |
more than 2,000 lbs | First Degree Felony | 5-99 years of life in prison | up to 10 years of probation |
So how do you beat a case where you were clearly in possession of marijuana? Well just because the government can prove all the basic elements of the offense doesn't mean they have to or that they will. One thing that we always do for our clients is present mitigating evidence to the district attorney's office in the form of recommendation letters or classes that our clients take to show they are willing to do what it takes to get a clean record.
In June 2019, Texas enacted House Bill 1325, legalizing the cultivation and processing of industrial hemp within the state. However, this legislation has led to significant confusion between industrial hemp and marijuana, both of which are derived from the Cannabis sativa L. plant. The primary distinction lies in the THC concentration: industrial hemp contains no more than 0.3% THC, the psychoactive compound in cannabis. This confusion has resulted in numerous individuals being charged with marijuana-related offenses despite the legality of hemp. As a criminal lawyer, it is crucial to understand these nuances to effectively defend clients who may be unjustly prosecuted due to this misunderstanding.
The implementation of the industrial hemp law has inadvertently complicated law enforcement's ability to distinguish between legal hemp and illegal marijuana. Field tests used by officers often cannot accurately measure THC levels, leading to wrongful arrests and charges. This regulatory grey area can significantly impact individuals' lives, as they may face serious criminal charges for possessing a substance that is legally indistinguishable from hemp. As a criminal lawyer, I am dedicated to helping those affected by this legal ambiguity, ensuring their rights are protected and that they receive the best possible defense. By highlighting the differences between hemp and marijuana, we can challenge unjust prosecutions and work towards clearer guidelines that prevent innocent people from being caught in the crossfire of this complex legal issue.
Substance | Definition |
Industrial Hemp (House Bill 1325) | Definition: "Industrial hemp" means the plant Cannabis sativa L. and any part of that plant, including the seeds of the plant and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis. Legal Provisions: - Allows the cultivation, processing, and sale of industrial hemp and hemp products. - Requires licensing for farmers and processors. - Mandates testing to ensure THC levels do not exceed 0.3%. |
Marijuana (Texas Controlled Substances Act) | Definition: "Marihuana" means the plant Cannabis sativa L., whether growing or not, the seeds of that plant, and every compound, manufacture, salt, derivative, mixture, or preparation of that plant or its seeds. Exclusions: - Excludes mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds, and any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seeds of the plant which are incapable of germination. - Excludes hemp as defined under the Agriculture Code (i.e., with THC concentration not more than 0.3% on a dry weight basis). |
What can make matters more confusing is that different counties or jurisdictions in Texas will enforce marijuana laws differently. For example, if you are found to be in possession of less than 4 ounces of marijuana (misdemeanor level) in Harris County, Texas the District Attorney's office will almost always release you without an arrest for Class B or Class A possession of marijuana. Only one county north in Montgomery County you will likely be arrested and have to have multiple court dates to attempt to get your case dismissed. If you are successful then the record of the arrest stays on your criminal background until you get a full expunction through a civil court.
An expunction in Texas is a legal process that allows individuals to have their criminal records erased effectively removing any record of an arrest, charge, or allegation from public access. This means that once an expunction is granted, the person can legally deny the occurrence of the arrest or charge in most circumstances, such as when applying for jobs, housing, or loans. To be eligible for an expunction, the individual must meet specific criteria set by Texas law, such as being acquitted, having the charges dismissed, being pardoned, or completing a pretrial diversion program. Additionally, certain misdemeanor and felony charges may qualify for expunction after a statute of limitations period has passed without further legal action. In some counties this time period may be waived by the prosecutor.
A lawyer can significantly assist in the expunction process by ensuring that all eligibility requirements are met and that the necessary legal paperwork is correctly filed. They can provide expert guidance on gathering the required documents, such as arrest records and court documents, and prepare a petition for expunction to be submitted to the court. Furthermore, a lawyer can represent the individual during court hearings, advocating for their right to have their records expunged and addressing any objections from law enforcement or prosecutors.
If you or a loved one has been arrested for possession of marijuana call now to start the process of taking back your life. 936-596-0407.
Sec. 481.121. OFFENSE: POSSESSION OF MARIJUANA (Spelled Marihuana in Health and Safety Code).
(a) Except as authorized by this chapter, a person commits an offense if the person knowingly or intentionally possesses a usable quantity of marihuana.
(b) An offense under Subsection (a) is:
(1) a Class B misdemeanor if the amount of marihuana possessed is two ounces or less;
(2) a Class A misdemeanor if the amount of marihuana possessed is four ounces or less but more than two ounces;
(3) a state jail felony if the amount of marihuana possessed is five pounds or less but more than four ounces;
(4) a felony of the third degree if the amount of marihuana possessed is 50 pounds or less but more than 5 pounds;
(5) a felony of the second degree if the amount of marihuana possessed is 2,000 pounds or less but more than 50 pounds; and
(6) a felony of the first degree punishable by imprisonment in the Texas Department of Criminal Justice for life or for a term of not more than 99 years or less than 5 years, and a fine not to exceed $50,000, if the amount of marihuana possessed is more than 2,000 pounds.
(c) It is a defense to prosecution for an offense punishable under Subsection (b)(1) or (2) that the actor:(1) was the first person to request emergency medical assistance in response to the possible overdose of another person and:(A) made the request for medical assistance during an ongoing medical emergency;(B) remained on the scene until the medical assistance arrived; and(C) cooperated with medical assistance and law enforcement personnel; or(2) was the victim of a possible overdose for which emergency medical assistance was requested, by the actor or by another person, during an ongoing medical emergency.(d) The defense to prosecution provided by Subsection (c) is not available if:(1) at the time the request for emergency medical assistance was made:(A) a peace officer was in the process of arresting the actor or executing a search warrant describing the actor or the place from which the request for medical assistance was made; or(B) the actor is committing another offense, other than an offense punishable under Section 481.115(b), 481.1151(b)(1), 481.116(b), 481.1161(b)(1) or (2), 481.117(b), or 481.118(b), or an offense under Section 481.119(b), 481.125(a), 483.041(a), or 485.031(a);(2) the actor has been previously convicted of or placed on deferred adjudication community supervision for an offense under this chapter or Chapter 483 or 485;(3) the actor was acquitted in a previous proceeding in which the actor successfully established the defense under that subsection or Section 481.115(g), 481.1151(c), 481.116(f), 481.1161(c), 481.117(f), 481.118(f), 481.119(c), 481.125(g), 483.041(e), or 485.031(c); or(4) at any time during the 18-month period preceding the date of the commission of the instant offense, the actor requested emergency medical assistance in response to the possible overdose of the actor or another person.(e) The defense to prosecution provided by Subsection (c) does not preclude the admission of evidence obtained by law enforcement resulting from the request for emergency medical assistance if that evidence pertains to an offense for which the defense described by Subsection (c) is not available. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 2.02, eff. Sept. 1, 1994.Amended by: Acts 2009, 81st Leg., R.S., Ch. 87 (S.B. 1969), Sec. 25.105, eff. September 1, 2009.Acts 2021, 87th Leg., R.S., Ch. 808 (H.B. 1694), Sec. 9, eff. September 1, 2021.Acts 2023, 88th Leg., R.S., Ch. 910 (H.B. 6), Sec. 16, eff. September 1, 2023.
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