Texas Health & Safety Code Offenses 481.121 – Possession of Marihuana / Possession of Marijuana *new definition of marijuana as of September 1, 2019
WHAT IS POSSESSION OF MARIHUANA IN TEXAS?
The Texas law against possession of marihuana prohibits having care, custody, control, or management of marihuana (or marijuana) in any usable amount.
- What is the definition of marihuana or marijuana in Texas? Texas Health and Safety Code Section 482.002 defines “marihuana” as the plant Cannabis sativa L., whether growing or not, the seeds of that plant, and every compound, manufacture, salt, derivative, mixture, or preparation of the resin. The term does not include “hemp” as defined by Texas Agriculture Code Section 121.001 (delta-9 THC concentration of 0.3% or more), or the tetrahydrocannabinols in hemp.Tetrahydrocannabinol with a delta-9 THC concentration of more than .3%, such as “vape” pens or cartridges, is a controlled substance in Penalty Group 2.
- Is medical marijuana/marihuana legal in Texas? Yes. Texas Health and Safety Code Chapter 487, known as the Texas Compassionate-Use Act, provides the licensing requirements to obtain medical marijuana.Texas Health and Safety Code Section 481.111 also contains an exemption for a person accused of manufacturing, delivering, or possessing with intent to deliver tetrahydrocannabinols or their derivatives if the person is participating in or manufacturing the tetrahydrocannabinols for use in a federally approved therapeutic research program.
WHAT IS THE POSSESSION OF MARIHUANA LAW IN TEXAS?
Tex. Health & Safety Code § 481.121. POSSESSION OF MARIHUANA.
(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) 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.
Tex. Health & Safety Code § 481.123. DEFENSE TO PROSECUTION FOR OFFENSE INVOLVING CONTROLLED SUBSTANCE ANALOGUE.
(a) It is an affirmative defense to the prosecution of an offense under this subchapter involving the manufacture, delivery, or possession of a controlled substance analogue that the analogue:
(1) was a substance for which there is an approved new drug application under Section 505 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Section 355); or
(2) was a substance for which an exemption for investigational use has been granted under Section 505 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Section 355), if the actor’s conduct with respect to the substance is in accord with the exemption.
WHAT IS THE PENALTY CLASS FOR POSSESSION OF MARIHUANA IN TEXAS?
The penalty classification for possession of marihuana depends on the amount.
- Class B misdemeanor, punishable by up to 180 days in county jail, if:
- the amount is two ounces or less;
- Class A misdemeanor, punishable by up to one year in county jail, if:
- the amount is four ounces or less but more than two ounces;
- State jail felony, punishable by 180 days to two years in a state jail facility, if:
- the amount is five pounds or less but more than four ounces;
- Third degree felony, punishable by two to ten years in prison, if:
- the amount is 50 pounds or less but more than five pounds;
- Second degree felony, punishable by two to 20 years in prison, if:
- the amount is 2,000 pounds or less but more than 50 pounds;
- First degree felony, punishable by five to 99 years or life in prison, if:
- the amount is over 2,000 pounds.
Texas Health and Safety Code Section 481.134 increases the minimum prison sentence by five years and doubles the fine for possession of marijuana categorized as a felony, other than a state jail felony, if the offense was committed in a “drug-free zone.” If the offense was a misdemeanor or state jail felony committed in a drug-free zone, the penalty classification is increased to the next highest category.
- What is a drug-free zone in Texas? Texas Health and Safety Code Section 481.134 describes a drug-free zone as:
- in, on, or within 1,000 feet of premises of a school (including a day-care center), of premises owned, rented, or leased by an institution of higher learning, the premises of a public or private youth center, or a playground;
- on a school bus; or
- in, on, or within 1,000 feet of premises owned, rented, or leased by a general residential operation operating as a residential treatment center.
WHAT IS THE PUNISHMENT RANGE FOR POSSESSION OF MARIHUANA IN TEXAS?
The punishment range for delivery of marihuana corresponds to the penalty classification, which depends on the amount of marihuana delivered.
- First degree felony (over 2,000 lbs):
- five to 99 years or life in prison, maximum $50,000 fine;
- Second degree felony (50 lbs to 2,000 lbs):
- two to 20 years in prison, maximum $10,000 fine;
- Third degree felony (5 lbs to 50 lbs):
- two to ten years in prison, maximum $10,000 fine;
- State jail felony (4 oz to 5 lbs):
- 180 days to two years in a state jail facility, maximum $10,000 fine;
- Class A misdemeanor (2 oz to 4 oz):
- up to one year in jail, maximum $4,000 fine;
- Class B misdemeanor (2 oz or less):
- up to 180 days in jail, maximum $2,000 fine.
WHAT ARE THE PENALTIES FOR POSSESSION OF MARIHUANA IN TEXAS?
A person charged with possession of marihuana may be eligible for probation after a conviction, or deferred adjudication without a conviction. The term of community supervision for delivery of marihuana charged as a Class A or Class B misdemeanor may not exceed two years.
The community supervision period for delivery of marihuana charged as a state jail felony may range from two and five years, with the possibility of extending supervision for up to ten years. The probation term for a third degree felony is between two and five years, while the deferred adjudication period for a third degree felony may be up to ten years.
If charged with a second degree felony or first degree felony possession of marihuana, the maximum supervision period is ten years.
WHAT ARE THE DEFENSES TO POSSESSION OF MARIHUANA IN TEXAS?
Texas Health and Safety Code Section 481.123 provides a defense to a person charged with manufacturing, delivering, or possessing a controlled substance if the substance was approved as a new drug by the FDA, or was exempt by the FDA for investigational use.
- What is the Good Samaritan defense in Texas? The Texas Health and Safety Code permits a person accused of possession of marihuana to raise a Good Samaritan defense at trial if the person was the first to request emergency medical assistance in response to an ongoing possible overdose of the person or another, stayed until first responders arrived, and cooperated with medical and law enforcement personnel.If the accused has successfully raised the Good Samaritan defense in a previous case, or called 911 for an overdose within the 18-month period preceding the instant offense, the person may not raise the Good Samaritan defense at a subsequent trial for possession of a controlled substance.
- Is a lab test required for drug cases in Texas? Generally, yes, even in marijuana cases. A person should not be convicted of possessing, manufacturing, or delivering a controlled substance in a specifically alleged penalty group without a lab report verifying the drug was the controlled substance alleged.In Ex parte Saucedo, the defendant was indicted for possession of methamphetamine, a controlled substance in Penalty Group 1. He pled before the lab results were sent to the prosecution, and was sentenced. The lab report revealed the defendant was actually in possession of methylethcathinone, a substance in Penalty Group 2. The Court of Criminal Appeals granted habeas relief, and cautioned all trial attorneys and defendants against pleading without all the evidence.
- What is drug possession in Texas? Texas Health and Safety Code Section 481.002 defines “possession” as actual care, custody, control, or management. Possession does not require proof a person is physically holding the controlled substance.In Rodriguez v. State, No. 04-21-00503-CR, the defendant’s girlfriend let her friend drive the defendant to the store. Police stopped the car while the defendant was in the passenger seat, and found 0.18 grams of methamphetamine in a chewing tobacco tin in the glove box. The officer noticed tobacco around the defendant’s mouth, so he was charged with and convicted of possession of less than a gram of a controlled substance in Penalty Group 1.
The appellate court affirmed. The drugs were conveniently accessible to the defendant on his side of the car, they were in a tobacco tin, and the defendant chewed tobacco.
- What is a search incident to arrest in Texas? The Fourth Amendment to the U.S. Constitution permits police officers to conduct warrantless searches incident to lawful arrests. The justification for permitting such a warrantless search is: (1) the need for officers to seize weapons or other things which might be used to assault an officer or effect an escape; and (2) the need to prevent the loss or destruction of evidence. See State v. Granville, 423 S.W.3d 399, 410 (Tex. Crim. App. 2014).In State v. Sanchez, an officer approached the defendant’s jeep, which was parked in a grassy area next to a bar with the driver’s door open, the engine turned off, and the defendant was asleep in the driver’s seat. The officer woke the defendant up to check on him, and learned he had traffic warrants. Incident to arrest, the officer searched the defendant’s pockets, and he had cocaine. He was then arrested for possession of a controlled substance in PG 1, his car was searched incident to that arrest, and more cocaine was found. The appellate court upheld the car search as a valid search incident to his arrest for possession.
In Botello v. State, police responded to an assault-in-progress. The officer spoke to the victim outside the home, who said the defendant was her estranged husband, had assaulted her, and was still inside. The defendant refused to come out, but the victim consented to a search of the home, so police forcefully went inside. Officers immediately arrested the defendant for assault, searched his pockets, and found over 24 grams of heroin. He was convicted of possession of a controlled substance in PG 1, and the appellate court affirmed.
WHAT IS THE STATUTE OF LIMITATIONS FOR POSSESSION OF MARIHUANA IN TEXAS?
The limitation period for possession of marihuana categorized as a misdemeanor is two years. If classified as a felony, the limitation period is three years.
POSSESSION OF MARIHUANA IN TEXAS
While Texas law continues to criminalize marijuana, cities and counties across the state have decided not to arrest people for possessing small amounts of marijuana. It must be noted, however, that because marijuana is still against Texas law, citizens carrying handguns or engaging in other illegal activity in addition to possessing marijuana may be arrested for those other offenses. Police who smell marijuana in a vehicle may also search that vehicle without a warrant.
TEXAS POSSESSION OF MARIHUANA IN TEXAS COURT CASES
The case law regarding possession of marihuana in Texas demonstrates how police continue to enforce the law, and the State has technology to test the plant material.
- In Johnson v. State, the defendant was stopped for a defective tail light, and was arrested for outstanding warrants. He had marijuana in his pocket, and was charged with possession of less than two ounces. At trial, a lab chemist testified he subjected the marijuana buds to gas chromatography testing which determined that the delta 9 THC levels were sufficient for the plant material to be classified as marijuana and not hemp under Texas law. The defendant was convicted, and the appellate court affirmed.
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DRIVING WHILE INTOXICATED .15
Driving facts involved failing to maintain a single lane and speeding. Client refused breath test and forced law enforcement to obtain search warrant for blood. Blood test result was not used after challenge from Defense, and State waived and abandoned charge.
DRIVING UNDER THE INFLUENCE
Client was a college student, worried about the collateral consequences of an alcohol offense. After negotiation and review of the traffic stop, the case was dismissed. Client received no criminal conviction. The charge was later expunged and deleted from client’s record.
DRIVING WHILE INTOXICATED .15+
Client was involved in minor accident. Client was at fault in accident. A young executive, client was concerned that a criminal conviction for DWI would result in termination. After review of the traffic stop, it was clear the officer lacked probable cause for arrest. State eventually dismissed DWI charge. Client received no criminal conviction.
Client, a military veteran, was facing up to one year in jail. State could not prove intoxication by alcohol, and was prepared to proceed on loss of use by marijuana. After challenging the State to prove that marijuana was ingested at or near time of driving, and that marijuana impaired client’s driving, the State dismissed the case on the day of trial.
DRIVING UNDER THE INFLUENCE
Driving facts involved a false claim by police that taillight was out. After challenging the reasonable suspicion for the traffic stop, the State was forced to dismiss the case when video did not match police report. Client has since expunged arrest, and has no criminal record.
DRIVING UNDER THE INFLUENCE
Client is a public school teacher and faced immediate termination upon conviction. The facts of the case were bad. State was unwilling to budge in negotiation, and matter was set for trial – the last shot at avoiding a conviction and preserving client’s livelihood. State was forced to dismiss on day of trial. Client has no criminal record, and has since expunged the DWI arrest.
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