Legalization of Marijuana in Texas | Texas Marijuana Defense

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Are the Views on Possession of Marijuana Changing in Texas?

In Texas, it is illegal to possess any useable amount of marijuana. Possession of any usable amount of marijuana is punishable by time in jail. Additionally, in Texas there is no exception for “medical marijuana,” marijuana prescribed by a doctor for medical purposes. In recent years, there has been a nationwide shift to legalization and decriminalization of marijuana. Are the views on marijuana in Texas changing?

Read more about Possession of Marijuana Charges in Texas

Legalization Marijuana in Texas

Legalization versus Decriminalization

Legalization of marijuana makes it legal to possess marijuana. States that legalize the possession of marijuana then regulate and tax marijuana, just as sales of alcohol are regulated and taxed. So far, Washington and Colorado have legalized marijuana. Decriminalization of marijuana, on the other hand, reduces the penalties for the possession of marijuana. This may come in the form of fines or citations for the possession of marijuana instead of jail time and diversion programs for first-time offenders as an alternative to a jail sentence.

Marijuana and Medicine

While under federal law marijuana is considered a Schedule I substance, a highly-addictive dangerous drug with no acceptable medical use, a growing number of physicians now believe that the marijuana can be used medicinally to treat pain, seizures, and recovery from concussions. In August 2013, CNN Chief Medical Correspondent Dr. Sanjay Gupta reversed his life-long position against marijuana and announced his support for the medical use of marijuana.

Interestingly, despite the federal prohibition of marijuana, the United States Department of Health and Human Services owns a patent to use marijuana to treat individuals for “age-related, inflammatory, and autoimmune diseases.”

In April, WebMD surveyed 1,544 doctors from across the nation and found:

  • 67% of the doctors surveyed say marijuana should be a medical option for patients;
  • 56% support making it legal nationwide; and
  • 50% of doctors in states where it is not legal say it should be legal in their states.

Another survey by CNN found that 76% of the doctors surveyed would approve use of marijuana to help ease a woman’s pain from breast cancer.

Possession of Marijuana in Texas

As governor, I have begun to implement policies that start us toward a decriminalization by introducing alternative “drug courts” that provide treatment and softer penalties for minor offenses. Texas Governor Rick Perry

Twenty-three states currently recognize medicinal marijuana as legal. According to a survey conducted by National Organization for the Reform of Marijuana Laws, 92% of Texans support the legalization of marijuana. A 2013 poll by Marijuana Policy Project found that 58% of the 860 Texans polled supported allowing the use of marijuana by seriously or terminally ill patients. Nearly two-thirds of the respondents supported changing the possession of small amounts of marijuana to an offense that is punishable by only a fine of up to $100 without the possibility of jail time.

Texas Marijuana Reform for Possession of Marijuana

While Texas has no exception for medical marijuana, the support for reforming marijuana laws in Texas is growing. Governor Rick Perry defended the rights of states, such as Colorado and Washington, to legalize marijuana and supports decriminalization in Texas through the creation of drug-diversion courts. Drug courts are court programs that offer treatment instead of jail time for minor offenses.

Changes in Prosecution

Devon Anderson (R), the current Harris County District Attorney, recently implemented a “First Chance Intervention Program” through which first-time offenders charged with possessing low amounts of marijuana will be able to avoid charges by completing eight hours of community service. In 2013, more than 12,000 people in Harris County were charged with marijuana possession for less than 4 ounces, costing taxpayers $4.4 million. In comparison, Colorado figures show that in January and February legal marijuana sales sat around $14 million, while in March the sales increased to $19 million. By the end of the year, $2.34 billion of legally purchased marijuana is expected to be sold in Colorado. Also making the news is Kim Ogg, the Democratic nominee for the Harris County District Attorney. Kim Ogg supports decriminalization of marijuana and claims Harris County could save 10 million dollars a year if those suspected of misdemeanor possession of less than 4 ounces spent two days cleaning up litter instead of going to court. If this community service approach is successful, offenders will not have a conviction on their record. Tarrant County has both DPP and DIRECT as potential alternatives to incarceration in certain circumstances.

Small Steps towards Decriminalization: Cite and Release Law in Texas

In 2007, the Texas Legislature passed the Cite and Release Law that allows officers to ticket and release someone for certain class B misdemeanors including possession of marijuana. The law is not mandatory and law enforcement agencies in Tarrant County do not take advantage of the Cite and Release provision. Article 14.06 (c) of the Texas Code of Criminal Procedure provides that a person who is charged with certain misdemeanor offenses, specifically including possession of marijuana up to four ounces, can be given a citation requiring their appearance in court instead of initially being booked-in and arrested on the offense. This does not change the potential punishment range for the offense, instead only avoids the initial arrest. The purpose of the legislation is to free up officers in the field so that they can handle offenses that are more serious. The law benefits the arrestee by allowing him/her to go home the same day of the offense instead of spending the night in jail. The punishment range is still the same if an arrestee is convicted of the offense. When using the Cite and Release law, officers must determine 1. Where the arrestee lives, and 2. Whether the arrestee has any warrants. If the person resides within the county and has no warrants, they are given a field release citation and told to report on a certain date in the future.

OffensePenaltyIncarcerationMax. Fine
Possession of Marijuana
2 oz or lessMisdemeanor180 days$ 2,000
2 – 4 ozMisdemeanor1 year$ 4,000
4 oz to 5 lbsFelony180 days* – 2 years$ 10,000
5 – 50 lbsFelony2* – 10 years$ 10,000
50 – 2000 lbsFelony2* – 20 years$ 10,000
More than 2000 lbsFelony5* – 99 years$ 50,000
* Mandatory minimum sentence
Sale of Marijuana
7 g or less for no remunerationMisdemeanor180 days$ 2,000
7 g or lessMisdemeanor1 year$ 4,000
7 g to 5 lbsFelony180 days* – 2 years$ 10,000
5 – 50 lbsFelony2* – 20 years$ 10,000
50 – 2000 lbsFelony5* – 99 years$ 10,000
More than 2000 lbsFelony10* – 99 years$ 100,000
To a minorFelony2* – 20 years$ 10,000
* Mandatory minimum sentence

Federal Conflict

It is still a federal offense to possess marijuana. Under the Controlled Substances Acts, possession of any amount of marijuana could be punished by one-year incarceration. Additionally, there is no exception for medical marijuana, nor could a state defense be raised in a federal court. Additionally, in a 2005 6-3 decision, the United States Supreme Court held that that the federal government has the constitutional authority to prohibit marijuana for all purposes, even in states that have legalized marijuana or allowed medicinal use of marijuana. The federal government, however, typically does not make arrests or prosecute for the possession of small amounts of marijuana.

While the views on marijuana in Texas may be slowly changing, possession of marijuana is still a crime both in Texas and at the federal level. If you are arrested for possession of marijuana in Fort Worth or anywhere in Tarrant County, you will go to jail. You may, however, be able to avoid a conviction, jail time, and remove the arrest from your record. To find out how, call the criminal defense attorneys at Varghese Summersett PLLC at (817) 203-2220.

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