Despite legal and cultural changes across the country, marijuana is still a penalized substance in Texas. Public perception of marijuana has been changing for many years, and recently has been changing drastically. Many states such as Washington and California have very notably legalized marijuana for medical and recreational use, but there is still no legally sanctioned use of marijuana in Texas, and no real looming legislative possibility of legalization anytime soon. It is unclear what the future holds for marijuana in Texas, but for now it is categorically illegal. The penalties can span from misdemeanor to felony, depending on amount. Some Counties across Texas in the largest metropolitan areas—Dallas and Harris Counties—have reduced the penalties for the lowest levels of possession to ticket-only. However, in smaller counties across Texas, possessing even small amounts will lead to arrest. In a big state, it depends on where you are. This page discusses the laws and penalties of possession of marijuana, misdemeanor and felony possession, and other aspects of the charge.       

What is the Texas Controlled Substance Act?

The Controlled Substance Act in the Texas Health and Safety Code categorizes banned substances or drugs based on two questions. First, what is the potential for abuse? Second, is there any medically recognized use for the drug? The Controlled Substance Act divides illegal substances accordingly into four groups with different penalties. Well-known drugs like heroin, cocaine, and methamphetamine are found here, as well many, many other substances that are not well-known but are considered potentially abusive and lacking medical value. The psychoactive substance present in marijuana is called tetra-hydro-cannabinol, and this is a controlled substance with more severe Marijuana is not a controlled substance in Texas. Marijuana has its own laws and its own penalties, and these are discussed below.              

What is the Law on Marijuana in Texas?

As mentioned above, while the vast majority of offenses are listed in the Texas Penal Code, drug offenses, including possession of marijuana and distribution or marijuana, are listed in the Health and Safety Code. The specific section on possession and what the penalties are can be found below. There are several different crimes involving marijuana. There is delivery of marijuana (Section 481.120), possession of marijuana (Section 481.121), and delivery of controlled substance or marijuana to a child. This page briefly discusses delivery of marijuana and delivery of marijuana to a child, this is a page about possession. What does it mean to legally possess something? What does possession mean? Possession is broadly defined.

“Possession” means any of these four things: custody, control, care, management

How does this come into play in court, and how can this be legally challenged? First, possession must be knowing or intentional. This is what actual possession means. The person possessing marijuana must know or intend to be doing so. Legal possession means more than ownership. If someone controls marijuana or maintains marijuana, that can still legally mean possessing marijuana, even if they do not technically own it. This often arises when police detain motorists and search vehicles. If marijuana is located in the glove compartment of a car, does the driver possess it? The answer is uncertain, and it can depend on many factors. Who else is in the car? Does the driver own the vehicle? What if the marijuana is located in the trunk? Or in the backseat? The annoying answer to these questions is that it depends. This is where lawyer skills come into play. If you have been charged with marijuana, whether or not you possessed marijuana is a specific question that requires detailed knowledge of your case.               

What are the Penalties?

As you will see below, Texas still uses the archaic spelling “marihuana” in the statute. This is unfamiliar and puzzling but Texas and Federal law have always utilized this strange spelling, and these things are difficult to change. So, what are they penalties? As you will see, like all drug charges, the penalties for possession of marijuana are determined by the amount. Amount is determined by weight, and measured in units of ounces and pounds. Possession of marijuana can be a low level misdemeanor or it can be a very serious felony. Class B marijuana is the least serious possible charge, and first degree felony is the most serious possible charge. This carries a daunting range of punishment of between 5 and 99 years in prison. As mentioned above, the statute on possession marijuana is located in Chapter 481 of the Health and Safety Code. For the actual text of the statute, click here: Section 481.121. Offense: Possession of Marihuana.      

Misdemeanor Possession of Marijuana

The majority of marijuana possession cases that wind up in criminal courts across Texas are class A or class B misdemeanors. This is because most people who have marijuana for personal use have relatively small misdemeanor amounts. All quantities of marijuana from small fractions of an ounce up to four ounces are misdemeanor level amounts. If the amount is very small, like the burnt end of a joint in an ashtray or a small quantity found in a pipe, the charge may only possession of drug paraphernalia. Possession of drug paraphernalia is a class C misdemeanor, which is handled in municipal court. It is the equivalent to a speeding ticket. Class C criminal offenses only carry a fine and have no potential of jail time. It is less common for a person to have more than four ounces for strictly personal use. Generally, when a person has more than four ounces, they will be charged with possession with intent to deliver, which carries stricter criminal penalties. Possession with intent to deliver is discussed below in greater detail, but the evidence in these cases is often circumstantial. If police discover marijuana in one bag or container, it is different than if they locate the same amount of marijuana spread out over several bags or containers. One bag generally signifies personal use, while multiple smaller sized bags may indicate distribution, although not always.        

Class B Possession Under Two Ounces

Class B possession of marijuana under two ounces is the most common criminal charge. Two ounces is a large quantity of marijuana for strictly personal use. Most of the these cases shake out the same way: marijuana is uncovered or discovered by police in a person’s vehicle as a result of a traffic stop. Vehicle searches are ripe for defense challenges. The legality of the search must always be closely examined by the defense attorney. Although, vehicle searches require only probable cause. Unlike a search of a person’s home, police do not need to secure a warrant. Probable cause requires specific, articulable suspicion that a crime has been committed or is about to be committed. It must be more than a hunch or a police officer’s instinct. Sometimes the police officer smells marijuana, which then leads to a search of the vehicle. Sometimes the vehicle gets searched because probable cause exists for another unrelated crime, and marijuana is subsequently found. Sometimes police will use the K-9 drug dogs that are trained to detect the smell of marijuana. If probable cause is questionable, the criminal defense attorney can file a motion to suppress the evidence to force the state to demonstrate to a judge that probable cause existed. If a judge finds that probable cause did not exist for the search, then all evidence resulting from the illegal search is suppressed and inadmissible in court.    

Felony Possession of Marijuana

As mentioned above, straightforward felony level possession of marijuana is much less common for at least two reasons. First, most people that possess marijuana for personal use do not have quantities great enough to trigger a felony. Second, if you have an amount that is four ounces or more, or perhaps several pounds, prosecutors will often charge possession with intent to deliver. (This crime is discussed in more detail below and bears more serious penalties). Felonies are handled differently than misdemeanors because they must go through the grand jury and the indictment process. To get prison time for possession of marijuana, there is probably a great deal of marijuana as well as aggravating circumstances such as prior convictions, prior trips to prison, or if a firearm is involved.

There are several different levels of felonies. Probation is also a possible outcome, and this includes both straight probation and deferred adjudication probation. The lowest level are state jail felonies, which have a possible range of punishment between six months and up to two years in a state jail facility. State jail felonies are different because the facilities are different and distinct and cannot result in a trip to the Texas Department of Corrections. The next level is a third-degree felony, and third degree felonies have a possible range of between two and ten years in prison. Second-degree felonies have a range of two and twenty years in prison. First degree felonies carry a penalty of between five and ninety-nine years. All felony convictions carry maximum of up to a $10,000 fine.            

Will this Affect My Driver’s License?

Under Texas law, any conviction for an offense under the Controlled Substances Act or a drug offense will result in a driver’s license suspension for six months from the date of the conviction. This includes all drugs in the penalty groups as well as any conviction involving marijuana, including possession or possession with intent to deliver. This is a serious, and often unforeseen, consequence to a conviction for possession of marijuana. Driving with a suspended license can lead to an arrest and can result in a criminal charge called DWLI. If your license does get suspended because of a conviction, your attorney can probably get an occupational driver’s license for you. The law on driver’s license suspensions for drug convictions is in the Texas Transportation Code. Look here for the statute, if you are interested: Section 521.372. Automatic Suspension; License Denial.

Related crimes: Possession of Marijuana with Intent to Deliver

Possession with intent to deliver is another related crime, and one that is slightly more serious. There are several ways that possession of marijuana can become possession with intent. Sometimes people make admissions to police that they are selling marijuana. If a person does not admit to this, police and prosecutors can look at the circumstances to decipher intent. If police find scales or locate marijuana packaged into smaller bags, these are indicators to police that the marijuana was not intended solely for personal use. The penalties are outlined here in Section 481.120. Offense: Delivery of Marihuana.

What about Delivery of Marijuana to a Child?  

Delivery of marijuana to a child carries even more serious penalties. Delivering either marijuana or a controlled substance to a child is a second-degree felony. This offense is listed in section 481.122 of the Texas Health and Safety Code. What does a child mean? Child means a person under 18 years old, and also the child must be enrolled in a public or private school. Furthermore, the person must know or believe that the child intends to deliver the marijuana. So there are two levels of delivery and this is why this crime can be a little complex. Here is the statute: Section 481.122 Offense: Delivery of Controlled Substance or Marihuana to a Child.