Possession of Marihuana: Texas Health and Safety Code §481.121

The Texas Possession of Marihuana law gives police the right to arrest you if they believe you possessed a “usable quantity” of marijuana.

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

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.

The Texas legislature codified this criminal offense in Texas Health and Safety Code Section 481.121. The law was most recently updated in 2023 by creating a new penalty level that applies to the possession of 2,000 or more pounds of marijuana.

However, the most significant recent change to the law came in 2019 when the legislature excluded hemp from the definition of “marihuana.” This had the effect of making possession of hemp, the exact same plant species as marijuana, completely legal.

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.

The Health and Safety Code classifies the Texas Possession of Marijuana law under Title 6 “Food, Drugs, Alcohol, and Hazardous Substances,” Chapter 481 “Texas Controlled Substances Act.” Learn more about the Texas offense of Possession of Marihuana below.

What is the current Texas law about Possession of Marihuana?

The current Texas law defines the offense of Possession of Marihuana in Health and Safety Code Section §481.121 as follows:^[1]

(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 important because as of 2019, marijuana does not include low-THC cannabis. If what you are in possession of is legally considered “hemp” as it’s defined in the new law, or a hemp-derived product, then you are not guilty of Possession of Marijuana. Even though both hemp and marijuana are the same species of plant, the new law creates a legal distinction between them based on the specific strain’s THC content.

There is no explicit definition of what a “usable quantity” of marijuana is. However, possession of two ounces or less of marijuana is the the lowest category described in the punishment range for a Possession of Marijuana conviction.^[2] The punishment becomes more severe as the amount of marijuana increases.

Possession of Marijuana requires proof of the highest mental states in the Texas Penal Code: knowingly or intentionally.

What does possession mean?

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.^[3]

What changed in 2023?

In 2023, the Texas legislature created a new penalty level that applies to possession of 2,000 or more pounds of marijuana. Under this new amendment, if the amount of marijuana possessed is more than 2,000 pounds, the offense is punished as a first degree felony with a minimum of five years in prison and a maximum of 99 years or life, alon with a fine not to exceed $50,000.^[4]

Did Texas legalize marijuana in 2019?

As of 2019, all “Hemp” products are excluded from the definition of marijuana.^[5] Under the 2019 amendments, Hemp is now defined as any Cannabis sativa L. plants, seeds 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.”^[6] Delta-9 tetrahydrocannabinol is THC.

The Cannabis sativa L. plants that are legally hemp are the same species of plants that are legally marijuana. The legal difference between them is merely the quantity of THC that the plant contains. Hemp, therefore, is basically any marijuana plant that contains 0.3 percent or less THC, and anything made from those plants.

Since the Texas Possession of Marijuana crime only prohibits possession of marijuana and does not forbid the possession of Hemp, you should not be convicted of Possession of Marijuana if the state cannot prove that any cannabis product in your possession was derived from plants containing more than the 0.3 percent THC concentration described above.

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

The Texas Health and Safety Code defines Marijuana as follows:^[7]

“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, the code continues its definition by specifically excluding certain products from the legal definition of marijuana.

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.

Also, effective in 2019, this list of exceptions was amended by adding a subsection (F) as follows:

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

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

You 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 Texas 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?

On June 1, 2015, the Texas legislature passed the Texas Compassionate Use Act, which was 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]

Is it legal to possess marijuana in Texas?

Under most circumstances, it is still illegal to possess marijuana in Texas

However, possession of hemp is perfectly legal.

What is the statute of limitation for Possession of Marijuana in Texas?

Misdemeanor level Possession of Marijuana charges have a two-year limitations period.^[10] Felony level offenses have a three-year limitations period.^[11]

What is the penalty for a Texas Possession of Marijuana offense?

Under the current law, the penalty level for a Texas Possession of Marijuana offense is classified according to the amount of marijuana that you posses. Possession of Marijuana is calssified as:^[12]

(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 poundsor 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.

The Drug-Free Zone Penalty Enhancement

The Texas Drug-Free Zone penalty enhancement applies to this offense. This penalty enhancement applies if the offense was committed: (1) in, on, or within 1,000 feet of any real property that is owned, rented, or leased to a school or school board, the premises of a public or private youth center, or a playground; (2) on a school bus; or (3) by any unauthorized person 18 years of age or older, in, on, or within 1,000 feet of premises owned, rented, or leased by a general residential operation operating as a residential treatment center.^[13]

The Drug-Free Zone penalty enhancement provisions include enhancements under subsections (c), (d), (e), or (f). Under those provisions, the minimum term of confinement for convictions under subsection (b)(4), (5), or (6) are increased by five years and the maximum fine for the offense is doubled.^[14] Convictions under subsection (b)(3) are enhanced to third degree felonies.^[15] Convictions under subsection (b)(2) are enhanced to state jail felonies.^[16] Convictions under subsection (b)(1) are enhanced to Class A misdemeanors.^[17]

Can you get probation for Possession of Marijuana in Texas?

The Texas Code of Criminal Procedure allows both judges and juries to grant probation for Possession of Marijuana, and judges are also allowed to accept deferred adjudication plea deals.^[18]

Note, however, that no matter the offense, neither judges nor juries may recommend community supervision for any suspended sentence of over 10 years.^[19] Also, judges may not grant community supervision after a conviction if (1) the defendant used or exhibited a deadly weapon during the commission of the felony or immediate flight thereafter and (2) the defendant used or exhibited the deadly weapon himself or was a party to the offense and knew that a deadly weapon would be used or exhibited.^[20]

Additionally, if you have been previously convicted of an offense for which punishment was increased under the Drug-Free Zone penalty enhancement, convictions for Possession of Marijuana enhanced under a Drug-Free Zone subsection (c), (d), (e), or (f) penalty enhancement are not eligible for community supervision or deferred adjudication.^[21]

What level of crime is Possession of Marijuana in Texas?

The Health and Safety Code classification of the punishment for Possession of Marijuana ranges from a Class B misdemeanor to a first degree felony, depending on the amount of marijuana possessed.

Learn more about the penalty range for this offense in the section above.

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Legal References:

^1. Texas Health and Safety Code §481.121. This law is current as of 2024.^2. Texas Health and Safety Code §481.121(b)(1)^3. Texas Penal Code Section 1.07(39)^4. Texas Health And Safety Code §481.121(b)(6), as amended by HB 6, 88th Texas Legislature (RS), Section 16^5. Section 481.002(26), Texas Health and Safety Code, as amended by HB 1325, 86th Legislature, Section 8^6. HB 1325, 86th 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.

^7. Texas Health and Safety Code §481.002(26)^8. a href=”http://www.capitol.state.tx.us/tlodocs/84R/billtext/html/SB00339I.htm” target=”_blank” rel=”noopener noreferrer”>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^10. Code of Criminal Procedure 12.02(a)^11. See Code of Criminal Procedure 12.01(9)^12 Texas Health and Safety Code §481.121(b)^13. Texas Health And Safety Code §481.134(c), (d), (e), and (f)^14. Texas Health And Safety Code §481.134(c)^15. Texas Health And Safety Code §481.134(d)^16. Texas Health And Safety Code §481.134(e)^17. Texas Health And Safety Code §481.134(f)^18. See Chapter 42, Texas Code of Criminal Procedure, Art. 42A.054, Art. 42A.056, Art. 42A.102 .^19. Art. 42A.053(c), Texas Code of Criminal Procedure^20. Art. 42A.054(b), Texas Code of Criminal Procedure^21. See Art. 42A.054(a)(17)(B), Texas Code of Criminal Procedure, Art. 42A.056(7), Texas Code of Criminal Procedure, and Art. 42A.102(b)(1)(D), Texas Code of Criminal Procedure