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Possession of Marihuana text with Dallas County flags in background

Possession of Marijuana

It is still illegal to possess marijuana in Texas. Possession of Marihuana is an offense that a person commits by knowingly or intentionally possessing a “usable amount” of marijuana. A “usable amount” of marijuana could be just enough for a person to smoke, but trace amounts should not lead to a conviction for this offense.

UPDATE: HB 1325, 86th Texas Legislature, made significant changes to the definition of Marijuana under Texas state law. Learn more about these changes below

State law uses the spelling “marihuana” (with an “h”) instead of “marijuana” (with a “j”), but we use the “marijuana” spelling throughout this article.

All Texas drug possession charges are found in Chapter 481 of the Texas Health and Safety Code. There are a number of other offenses related to marijuana, including Delivery of Marihuana and Delivery of Marihuana to a Child. Learn more about Drug Possession charges

Have you been charged with Possession of Marijuana? Call criminal defense lawyer Paul Saputo at (888) 239-9305.

The offense Possession of Marijuana requires proof the highest mental states in the Texas Penal Code: knowingly or intentionally. The Possession of Marijuana offense also requires that the person charged be the actual possessor of the marijuana. Having possession requires several elements, including actual care, custody, control, or management.1 Learn more about what “possession” means

How can I be charged with Possession of Marijuana?

Possession of Marijuana is defined in Section 481.121(a) of the Texas Health and Safety Code2 as follows:

(a) Except as authorized by this chapter, a person commits an offense if the person knowingly or intentionally possesses a usable quantity of marihuana.

The definition of marijuana is also important because as of 2019, marijuana does not include low-THC cannabis. If what you are in possession of is technically “hemp” as it’s defined in the new Hemp law, then you are not guilty of Possession of Marijuana.

There is no explicit definition of what a “usable quantity” of marijuana is. However, possession of two ounces or less3 of marijuana is the the lowest category described in the punishment range for a Possession of Marijuana conviction. The punishment becomes more severe as the amount of marijuana increases.

How do you beat a Possession of Marijuana charge?

In defending against a Possession of Marijuana charge, we might challenge the state’s accusation that you or someone you know intentionally or knowingly possessed marijuana. If the state can’t prove this mental state beyond a reasonable doubt, you will win the case.

You might also challenge the constitutionality of the search that led to the discovery of the marijuana. If the police searched you or your car or home without your consent, the search may have been illegal if they did not obtain a search warrant in advance.

If your case started in 2019 or later, you may also be able to challenge the state’s accusation that any cannabis you possessed was actually “marijuana” as that is defined in the new 2019 Texas Hemp law. If the state can’t prove the necessary THC quantity, then the marijuana isn’t really marijuana at all (for the purposes of this law). It would be considered Hemp.

Please contact us to review your case, and we can help determine whether this kind of challenge could be successful.

What is the range of punishment for Possession of Marijuana?

Possession of Marijuana is punishable by:4

(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 degreee 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.

Learn more about sentencing in Texas and the difference between felonies and misdemeanors

Where is “marijuana” defined in the Texas Penal Code?

Marijuana is defined in Section 481.001(26) of the Texas Health and Safety Code.5

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.

However, there are several exceptions to the definition of marijuana. See note 5 below for more about the exceptions

2019 Texas Hemp Law

Beginning in 2019, “Hemp” is excluded from the above definition of marijuana.6 Hemp is now defined in Section 121.001, Agriculture Code, as any Cannabis sativa L. plants [that’s the same as the marijuana plant], seeds and all “derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol [that’s THC] concentration of not more than 0.3 percent on a dry weight basis.”7 Hemp, therefore, is basically any marijuana that contains 0.3 percent or less THC.

Since Possession of Marijuana does not include possession of Hemp, you should not be convicted of Possession of Marijuana if the state cannot prove that any cannabis in your possession had the 0.3 percent THC concentration described above.

What if I was just one of many passengers in a car that is found to contain marijuana?

Yo have to be both in possession of the marijuana and know that you are in possession of it to be guilty of Possession of Marijuana under the law. In other words, if marijuana was in your car, but you did not know that it was in your car, then you should not be guilty of the offense.

However, law enforcement will typically arrest all passengers of a vehicle where marijuana was found and charge them all with Possession of Marijuana. This is not a fair outcome, but it does happen with regularity across Texas.

Is medical marijuana legal in Texas?

Medical marijuana is not currently legal in Texas. However, On June 1, 2015, Texas Governor Greg Abbot signed Senate Bill 339, 84th Texas Legislature, into law. Senate Bill 339 was called the Texas Compassionate Use Act, and it is intended to allow nonprofit organizations to dispense “low-THC cannabis” to certain qualifying patients who suffer from epilepsy.8

The Texas Compassionate Use Act is very limited in scope, but it has begun to take effect, and DPS has offered some limited resources online.9

Legal References:

1 Texas Penal Code Section 1.07(39)

2 Section 481.121(a), Texas Health and Safety Code

3 Section 481.121(b)(1), Texas Health and Safety Code

4 Section 481.121(b), Texas Health and Safety Code

5 Texas Health and Safety Code Section 481.002(26) – “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. The term “marihuana” does not include:

(A) the resin extracted from a part of the plant or a compound, manufacture, salt, derivative, mixture, or preparation of the resin;

(B) the mature stalks of the plant or fiber produced from the stalks;

(C) oil or cake made from the seeds of the plant;

(D) a compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, fiber, oil, or cake; or

(E) the sterilized seeds of the plant that are incapable of beginning germination.

Beginning in 2019, this list is amended by adding a subsection (F) as follows:6

(F) hemp, as that term is defined by Section 121.001, Agriculture Code.

6 HB 1325, 86th Texas Legislature, Section 8, amending Section 481.002(26), Texas Health and Safety Code

7 HB 1325, 86th Texas Legislature, Section 2, amending Title 5, Texas Agriculture Code, by adding Section 121.001:

In this chapter, “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, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.

8 Senate Bill 339, 84th Texas Legislature

9 The Texas DPS Compassionate Use Act website, available in pdf form here: Medical Marijuana in Texas – Compassionate Use Program

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