In October 2015, Gallup polls reported that 58% of Americans favored legalization of marijuana. The following year, Gallup released a poll showing 33 million Americans smoked marijuana. (Compare this to 40 million cigarette smokers.) Recently, a Pew Research Center study shows an astonishing 68% of officers support legalization or decriminalization of marijuana.
While possession of marijuana for personal or medical use becomes legal in a growing number of states in the United States, and jurisdictions in Texas decline prosecution of these charges, one thing is clear: the sale and delivery of marijuana is not expected to become legal in Texas anytime soon.
Is it legal to grow marijuana in Texas?
No. Growing marijuana will subject you to charges for possession of marijuana. Selling marijuana will result in charges for delivery of marijuana.
Delivery of Marijuana in Texas
Marijuana, under the Texas Health and Safety Code, is defined to include 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.” Tex. Health & Safety Code § 481.002 (26). The term “deliver” encompasses the sale of marijuana. Under the Texas Health and Safety Code, to “deliver” also includes the transfer of marijuana to another. The transfer can be an actual transfer or a constructive transfer. Tex. Health & Safety Code § 481.120. A constructive transfer involves an indirect transfer where the person delivering still allows for a change of possession, such as keys to a car or hotel room where the marijuana is located. Even taking all the steps to secure a transaction may be enough to satisfy this element. Torres v. State, 667 S.W.2d 190, 194 (Tex. App.—Corpus Christi 1983)
Under Texas Health & Safety Code § 481.120, a person commits the offense of Delivery of Marijuana if they knowingly or intentionally deliver marijuana. The punishment becomes more severe depending on the amount of marijuana involved. Punishment can also vary depending on whether a payment took place. These charges impose stricter sentences for a smaller amount of marijuana than a similar possession charge.
|1/4 oz or less without pay||Class B misdemeanor||up to 180 days in county jail, $0-2,000 fine|
|1/4 oz or less with pay||Class A misdemeanor||up to a year in county jail,$0-4,000 fine|
|1/4 oz to 5lbs||State Jail Felony||180 days to 2 years in state jail, $0-10,000 fine|
|5 to 50 lbs||Second Degree Felony||2-20 years in state prison, $0-10,000 fine|
|50 to 2,000 lbs||First Degree Felony||5-99 years or life in state prison, $0-10,000 fine|
|2,000 lbs or more||First Degree Felony||10-99 years or life in state prison, $0-100,000 fine|
Delivery of Marijuana in a Drug-Free Zone
If the delivery of marijuana takes place within a drug-free zone, such as within 1,000 feet of a school, playground, or public or private youth center, the punishment for the crime will increase by one level. For instance, under Texas Health & Safety Code § 481.134, a state jail felony delivery taking place in a drug-free zone will become a third-degree felony with corresponding punishments and sentences. Additionally, under Texas Health & Safety Code § 481.122, delivering marijuana to a person under 18 years of age or who is enrolled in a primary or secondary school has committed a second-degree felony.
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