Decriminalization of Marijuana in Texas: Legislation to Watch in 2017

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The Backdrop: A Nationwide Movement towards Decriminalization and Legalization

Recreational Use

As of 2017, twenty-eight states currently allow for the legal use of some form of marijuana, with eight states and one territory allowing for recreational use. Legalization of recreational marijuana for those over 21 started with Colorado and Washington in 2012. Then, in 2014, the District of Columbia, Oregon, and Alaska all followed. In the most recent election, marijuana was on the ballot recreationally in five states—California, Arizona, Massachusetts, Maine, and Nevada. In all but Arizona, recreational use became legal for adults in 2016.

Medical Use

Medicinal marijuana was legal in Arizona, New Hampshire, Rhode Island, Connecticut, New Jersey, Delaware, Maryland, New York, Pennsylvania, Ohio, Illinois, Michigan, Montana, Vermont, and New Mexico prior to the 2016 election. Four states recently approved medicinal marijuana use in 2016 as well. Florida, Arkansas, Montana, and North Dakota all approved medicinal use in November. Currently, only six states restrict marijuana use altogether—Indiana, West Virginia, Kansas, Nebraska, South Dakota, and Idaho.

Decriminalization of Marijuana in Texas

While several states have legalized marijuana, others including Texas are considering decriminalization. Currently, it is not only illegal to possess a usable amount of marijuana in Texas, any usable amount can result in jail time. Decriminalization simply means that states are considering revising their laws so that possession of small amounts of personal use will not result in prosecution that could lead to jail time. This means that the perpetrator will not result in a criminal record or jail sentence. This would be similar to a traffic citation.

Legalization of Marijuana

Legalization, however, would result in no fine or arrest in cases of possession of marijuana when following the proper age, place, and amount. In the same way that alcohol is regulated, states that have legalized marijuana regulate the age of consumers, the channels for purchasing, the amount allowed, and the places in which it can be consumed. Violations of these particular regulations, would result in various offenses depending on state laws.

Federal Marijuana Laws

Under federal law, marijuana use is still illegal. State laws permitting marijuana use are in conflict with federal laws that prohibit the sale of marijuana, which is still a controlled substance. 21 U.S.C. § 812; 21 U.S.C. § 841(a)(1). Although it is unclear at the present time how the new administration will enforce these laws, marijuana cases are rarely prosecuted at the federal level.

Existing Decriminalization Legislation in Texas

In 2007, Texas enacted legislation that enabled officers to issue a citation and release individuals in possession of small amounts of marijuana. Tex. Code Crim. Proc. Art. 14.06 (c). Typically, individuals apprehended with four ounces or less of marijuana would normally be taken into custody and brought before a magistrate judge. With so-called “cite-and-release” provision of the legislation, those charged with a Class A or B misdemeanor could be released after the citation, instead of being taken into custody. The appearance before the magistrate and the penalties, however, for the Class A or B misdemeanor would remain the same. Tex. Code Crim. Proc. Art. 14.06 (c). Currently, Travis County, Hays County, and Williamson County take advantage of this provision. Dallas City Council recently turned down the use of the provision.

Marijuana Legislation to Watch in Texas

In the 2017 legislative session, Texas representatives will consider new legislation concerning marijuana.

  • House Bill 58: Representative James White submitted this measure instituting a specialty court for first-time marijuana offenders. The main contentions backing this measure are the theory that first-time offenders are self-correcting and that this conserves the use of law enforcement resources.
  • House Bill 81: Representative Joseph Moody’s proposal aims to replace current criminal sanctions for possession of marijuana up to one ounce with a fine of $250. Under House Bill 81, no arrest or jail time would result for possession of an ounce or less of marijuana. A similar bill was filed last session, but did not pass.
  • House Bill 82: Representative Harold Dutton’s measure aims to reduce the classification of a conviction of one ounce or less of marijuana from a Class B misdemeanor to a Class C misdemeanor. Three of these convictions, however, would result in a reversion back to a Class B misdemeanor. A similar bill was filed last session, but failed to pass.
  • House Bill 680: Representative Gene Wu’s proposal would add a new classification under the Health and Safety Code so that possession of less than .35 ounces would be considered a Class C misdemeanor, punishable by a fine up to $500. This punishment could be heightened if the possession was in a drug-free zone or with three convictions.
  • Senate Bill 170: Senator Jose Rodriguez’s measure, similar to House Bill 81, would punish non-violent possession of marijuana less than one ounce with a fine as opposed to an arrest.
  • Joint Resolution 17: Senator Jose Rodriquez also filed this proposal in order to allow Texas voters to decide on the legalization of marijuana.
  • Joint Resolution 18: Rodriquez again submits a proposal, this time for Texas voters to decide on medicinal marijuana use.

If you have been charged with possession of marijuana, drug paraphernalia, delivery of marijuana, or possession of cannabis concentrate in north Texas, give us a call at (817) 203-2220 or contact us online:

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