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Possession of Marijuana

It is still illegal to possess marijuana in Texas. Possession of Marihuana is one of the “simple possession” drug charges under Texas law (the other group being Possession of a Controlled Substance). Possession of Marihuana is an offense that a person commits by knowingly or intentionally possessing a “usable amount” of marijuana. A “usable amount” of marihuana could be just enough for a person to smoke, for example. A simple possession charge involving larger amounts of marihuana leads to a more severe punishment. The state law uses the spelling “marihuana” instead of the the more common “marijuana” spelling.

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

The Texas drug possession charges are found in Chapter 481 of the Texas Health and Safety Code. Other offenses involving marijuana include Delivery of Marihuana. Learn more about Drug Possession charges

The offense Possession of Marihuana requires proof the highest mental states in the Texas Penal Code: knowingly or intentionally. The Possession of Marihuana offense also requires that the person charged be the actual possessor of the marihuana. Having possession requires several elements such as actual care, custody, control, or management1. Learn more about what “possession” means

How can I be charged with Possession of Marihuana?

Possession of Marihuana is defined in Section 481.121(a) of the Texas Health and Safety Code 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.

There is no explicit definition of what a “usable quantity” of marijuana is. However, possession of two ounces or less2 of marijuana is the the lowest category described in the punishment range for a Possession of Marihuana conviction. The punishment becomes more severe as the amount of marihuana increases.
The Possession of Marijuana law describes the punishment ranges for various quantities of marijuana in subsection(b) of the statute.

How do you beat a Possession of Marihuana 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 marihuana. If the state can’t prove this mental state beyond a reasonable doubt, you will win the case. You might also by challenge the constitutionality of the search that led to the discovery of the marihuana. 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. 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 Marihuana?

According to Section 481.121(b) of the Texas Penal Code, Possession of Marihuana is punishable by:

(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.

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

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

Marihuana3 is defined in Section 481.001(26) of the Texas Penal Code as follows:

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.

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

Only the person who was in possession of the marihuana and knew they were in possession of it is guilty of Possession of Marihuana under the law. However, often law enforcement will typically arrest all passengers of a vehicle where marihuana was found with Possession of Marihuana and then later attempt identify the possessor. For this reason, it is important to contact an attorney immediately after being arrested or charged.

Is medical marihuana legal in Texas?

Medical marijuana is not currently legal in Texas. However, On June 1, 2015, Texas Governor Greg Abbot signed Senate Bill 339 into law. Senate Bill 339 is 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 epilepsy4. The medical marihuana use allowed under this Texas law will not begin to take effect for several years because the dispensing organizations will need to come into compliance with the new law before these organizations can begin prescribing certain approved types of marihuana. Also, the Texas Compassionate Use Act is very limited in scope so law enforcement will not yet assume that a person found in possession of marihuana is doing so legally. We predict that the Texas Department of Public Safety will give licenses to at least three dispensing organizations by September 20175.

Legal References:

1 Texas Penal Code Section 1.07(39)

2 Texas Penal Code Section 481.121(b)(1)

3 Texas Penal Code Section 481.002(26) – 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.

4 Texas Senate Bill 339 Section 487.001

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

Published by Criminal Defense Attorney on and last modified