possession of marijuana texas

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The Truth About Marijuana in Tarrant County

If you've been following the news this year, you may have heard that marijuana prosecution is becoming more difficult in Texas due to the legalization of hemp. There's some truth to that. However, it is also true the Attorney General has asked all the elected District Attorneys in Texas to continue to prosecute low-level marijuana cases. So what's going on?

Marijuana Prosecution and Defense in Tarrant County

Before legislators made hemp legal in Texas, changes were already in the works in Tarrant County. This came in light of the fact that 11% of the 49,980 misdemeanor and felony criminal cases in 2018 that were filed in Tarrant County were possession of marijuana cases. Tarrant County has filed 20,765 cases of possession of marijuana, under two ounces, in the last five years alone. About 2,000 more cases were filed for other marijuana charges over that same period. As Sharen Wilson put it, the "sheer volume" of cases being filed required a second look at how these cases are being handled.

Fort Worth Possession of Marijuana Defense 

There is a now (at least for the time-being) a pathway to getting misdemeanor marijuana cases reduced or dismissed in Tarrant County. That doesn't mean every case will be dismissed or reduced, but it is a substantial change from how marijuana cases were prosecuted in the past - and it will be less work for prosecutors. 

Marijuana Confusion in Texas

House Bill 1325 made hemp legal in Texas as long as the THC content is .3 percent or less. Hemp and marijuana are both come from the cannabis sativa plant. While there are arguable differences in the plant - hemp has leaner leaves, marijuana is a bushier plant - what really sets them apart is the amount of tetrahydrocannabinol (THC) -the chemical cannabinoid in the plant. From as scientific standpoint, as the USDA points out, hemp and marijuana are visually indistinguishable.  For marijuana, THC levels can reach 30%, while THC levels in hemp are less than 0.3%.

The problem that prosecutors have is that most Texas crime labs currently have no way to determine the concentration of THC in a given sample. This means to successfully prosecute marijuana cases, samples have to be sent out of state or prosecutors will have to try to retrofit labs to test for THC concentration to the tune of millions of dollars. Long story short, it is not that Texas has legalized marijuana, it is that successful prosecution of these cases has become considerable more expensive 

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What should you do if you are arrested for possession of marijuana in Tarrant County is 2019?

There's never been a better time for us to make sure a misdemeanor marijuana case does not create a permanent blemish on your record. While not every case can be dismissed, we have had numerous marijuana cases dismissed over the last month. If you have been arrested for marijuana in Fort Worth, Arlington, or anywhere else in Tarrant County, give us a call.

  • The consultation is free
  • We will talk to you about your case and the best path we see going forward.
  • We will also talk to you about the possibility of getting an expunction or nondisclosure to get the arrest off you record in the future. 

Tarrant County Marijuana Defense

We know how important it is to keep a marijuana conviction off a person's record. The direct and collateral consequences of such a conviction are severe and archaic. We have successfully defended hundreds of marijuana cases. Some cases are resolved through diversion while others are resolved by good old fashioned defense work. Some of our strategies, in appropriate cases, involve:

  • Disputing the amount: Whether prosecutors have any evidence that the substance is marijuana - and not hemp.
  • Disputing the amount: Whether we are discussing a possession of marijuana case that is a misdemeanor or a felony, the defense has a right to inspect the evidence. In some cases our inspection involves re-testing evidence to see if the substance is actually marijuana and if it falls within the punishment range the prosecutors are seeking. This may mean the difference between a felony and a misdemeanor or a ticket and a charge that can send you to jail.
  • Disputing possession: Prosecutors are taught that possession means care, custody, and control. They are also taught that possession can be actual or constructive and that two people can possess the same thing at the same time. This all boils down to prosecutors being less than receptive to arguments that a person did not possess drugs, for instance, found in his vehicle. That does not mean juries are not receptive to those arguments.
  • Illegal stops: An officer must have reasonable suspicion to stop you. Sometimes we are able to show that the officer did not have any legal basis to stop you and have the evidence obtained as a result of that stop thrown out.
  • Illegal searches and seizures: Sometimes officers search a vehicle without obtaining consent, probable cause, or a search warrant. In those cases, we file Motions to Suppress to the evidence thrown out.
  • Bad dog sniffs: While officers are allowed to use canines to sniff cars, there have been many instances where the police officer or dog handler is intentionally or unintentionally telling the dog to alert. It takes time, money, and usually expert testimony to fight this fight, but it is one worth fighting.
  • Prolonged Detentions:  Officers cannot prolong an otherwise completed stop just to get a drug dog to the scene. In cases involving drug dogs that were not already on site, we see opportunities to attack the evidence and potentially get it thrown out.
  • Chain of custody: If we can show the chain of custody was compromised, there may be a way to win the case. If there was a problem with the first or last link in the chain, the judge may also rule the evidence is inadmissible before we ever get to a jury.
  • Lab and officer issues: If you've been following the news, many labs have run into issues with dry-labbing, reporting errors, loss of accreditation, etc. Did you know that over 6,800 officers have been arrested in the State of Texas? We keep records of officer arrests as well as lab issues so that your case is checked for known bad apples.

Our goals for marijuana charges, especially first-time offenses, are:

possession of marijuana

Possession of Marijuana Under Two Ounces in Texas

Possession of Marijuana in Texas, even in very small amounts, is still illegal despite its growing popularity. The standard for prosecution is whether or not there was a “usable quantity” of marijuana.” (This despite the widespread support to make possession under two ounces a Class C ticket.) If officers claim a usable quantity of marijuana was seized, they will file a Possession of Marijuana under Two Ounce case. This is commonly abbreviated as “POMu2” or “Poss Marij <2 OZ.” Even at this lowest level, which is a Class B misdemeanor, a conviction for possession of marijuana can result in up to six months in jail, a $2,000 fine, court courts, probation, and up to a one-year driver license suspension. If the officers concede they don’t have a usable amount of marijuana, they will commonly file Possession of Drug Paraphernalia charges.

possession of marijuana

As the amount of marijuana goes up, so too does the punishment range. For example, Possession of Marijuana between 2-4 Ounces, (commonly abbreviated as POM 2-4, or Poss Marij >2 OZ <= 4 OZ) is a Class A misdemeanor punishable by a year in jail or two years probation.

Enhancements like “Drug Free Zone” or “DFZ,” increase the punishment range by one level.

Possession of Marijuana Defense

Our goal for anyone charged with possession of marijuana is to seek an outcome that does not result in a conviction or jail time. In many cases, we are able to secure outcomes that also make it possible to expunge even the arrest record. You can find dozens of examples of marijuana cases we have had dismissed or no-billed on our results page.

Although the number of possession of marijuana cases filed across the state has been falling over recent years, a conviction for possession of marijuana can result in jail time, a driver license suspension, and carry with it a social stigma that can jeopardize future employment opportunities.

NORML Fort Worth Defense Attorney

Collateral Consequences of Marijuana Charges

We are looking at all the present and future collateral consequences for this type of charge. It will affect your current and future employment. A possession of marijuana conviction may prevent you from getting student loans. Certainly students on F1 or student visas jeopardize their chances of even staying in the country. So too does any plea to possession of marijuana over 30 grams for any non-citizen including permanent residents and Green Card holders.

Can you get your marijuana charge expunged?

This may be one of the most important questions to ask your attorney. The answer should be, “it depends.” If the case is handled properly, and if you get one of the outcomes that allow for expunction you should be able to get an expunction assuming you have no other violations during the statute of limitations period. Some outcomes like DPP and other diversion programs also offer paths to an expunction of the charge from your record.

Driver License Suspension for Marijuana Charges

If you are under the age of 21 and receive a jail sentence for possession of marijuana, your Driver License will be suspended for one year. If you are 21 or older, your license will be suspended for six months. Click here to learn more about license suspensions in Texas stemming from marijuana charges. 

What is the statute of limitations for marijuana charges in Texas?


Possession of Marijuana

A person commits possession of marijuana under Texas law if the person “knowingly or intentionally possesses a usable quantity of marijuana.” (Tex. Health & Safety Code Section 481.121.) Possession is not ownership, rather possession means “actual care, custody, control, or management.”  Section 481.002 (38).norml attorney fort worth

What is a “Usable Quantity” of Marijuana in Texas?

In various cases around the state, courts have found the following amounts were sufficient to satisfy a usable quantity of marijuana:

  • one-half ounce; (Carmouche v. State, 540 S.W.2d 701, 702 (Tex.Crim.App.1976));
  • one hand-rolled cigarette weighing .38 grams. (Andrade v. State, 662 S.W.2d 446, 449 (Tex.App.-Corpus Christi 1983, pet. ref’d).

Driver License Suspension Due to Marijuana Conviction

Once a person is convicted of any grade of possession of marijuana in Texas, that person’s driver license will automatically be suspended by the Texas Department of Public Safety for at least 180 days. (Tex. Tn. Code Ann. §521.372(1).

Possession of Marijuana Punishment

Possession of Drug ParaphernaliaClass C Misdemeanor$0-500 Fine
Possession of Marijuana Under Two OuncesClass B MisdemeanorUp to 180 days in Jail,$0-2,000 fine
Possession of Marijuana 2-4 ozClass A MisdemeanorUp to 1 year in Jail,$0-4,000 fine
Possession of Marijuana 4 oz to 5 lbsState Jail Felony180 days - 2 Years, State Jail, Up to $10,000 fine.
Possession of Marijuana 5-50 lbsThird Degree Felony2-10 Years Penitentiary, Up to $10,000 fine
Possession of Marijuana 50-2000 lbsSecond Degree Felony2-20 Years Penitentiary, Up to $10,000 fine.
Possession of Marijuana 2000+ lbsFirst Degree Felony5-99 Years/Life, Up to $50,000 fine*

If you’ve been charged with possession of marijuana in any amount in north Texas, call us at (817) 203-2220.

What about marijuana wax or hash?marijuana wax

Texas Health and Safety Code Section 481.103 makes “[t]etrahydrocannabinols, other than marihuana, and synthetic equivalents of the substances contained in the plant, or in the resinous extractives of Cannabis, or synthetic substances, derivatives.” In everyday terms, that means anything with THC is likely going to get prosecuted as a Penalty Group II substance. This means any amount, even under 1 gram, is considered a felony. Making matters worse, drugs in Texas include the weight of adulterants and dilutants. This is why, at least for a time, a Texas teenager was facing a potential life sentence for baking a tray of marijuana-infused brownies, despite the fact that there was only 2.5 grams of THC in the 1.5 pounds of brownies he made.

Fort Worth Marijuana Defense Attorneys

we listen fort worth criminal defenseCall us at (817) 203-2220 for a complimentary strategy session. Our team of former prosecutors and Board Certified Criminal Lawyers are here to help. During this call we will:

  • Discuss the facts of your case;
  • Discuss the legal issues involved, including the direct and collateral consequences of the allegation; and
  • Discuss the defenses that apply to your plan and in general terms discuss our approach to your case.

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What is falsifying a drug test?

A common condition of probation or being out on bond is that a person provide random urinalysis samples to test for the presence of illicit drugs. If you are caught using any device or substance to defeat a drug test – from a urinator to synthetic urine – you will be charged with a new Class B offense for falsifying a drug test.

Possession of Drug Paraphernalia – Class C

A person commits the offense if the person knowingly or intentionally uses or possesses with intent to use drug paraphernalia. (Tex. Health & Safety Code §481.125(a).) Drug paraphernalia may include marijuana seeds, marijuana pipes, marijuana grinders, etc. The punishment for a class C misdemeanor in Texas is a fine of not more than $500, and does not involve any jail time. (Tex. Pen. Code Ann. §12.23.)

Possession of Marijuana Under Two Ounces – Class B

Possession of marijuana is a class B misdemeanor if the amount of marijuana possessed is two ounces or less. (Tex. Health & Safety Code §481.121(b)(1).) The punishment for a class B misdemeanor in Texas is a sentence of confinement in jail for a term of not more than 180 days, a fine of not more than $2000, or both. (Tex. Pen. Code Ann. §12.22.)

Possession of Marijuana Two to Four Ounces – Class A

Possession of marijuana is a class A misdemeanor if the amount of marijuana possessed is four ounces or less but more than two ounces. (Tex. Health & Safety Code §481.121(b)(2).) The punishment for a class A misdemeanor in Texas is a sentence of confinement in jail for a term of not more than one year, a fine of not more than $4000, or both. (Tex. Pen. Code Ann. §12.21.)

Possession of Marijuana Four Ounces to Five Pounds – State Jail

Possession of marijuana is a state jail felony in Texas if the amount of marijuana possessed is five pounds or less but more than four ounces. (Tex. Health & Safety Code §481.121(b)(3).) The punishment for a state jail felony in Texas is a sentence of incarceration in the state jail of 180 days to two years, and a fine of not more than $10,000. (Tex. Pen. Code Ann. §12.35.)

Possession of Marijuana Five Pounds to Fifty Pounds – Third Degree

Possession of marijuana is a felony of the third degree in Texas if the amount of marijuana possessed is 50 pounds or less but more than 5 pounds. (Tex. Health & Safety Code §481.121(b)(4).) The punishment for a felony of the third degree in Texas is incarceration in the Texas Department of Criminal Justice ranging from two years to ten years and a fine of not more than $10,000. (Tex. Pen. Code Ann. §12.34.)

Possession of Marijuana Fifty Pounds to 2000 Pounds – Second Degree

Possession of marijuana is a felony of the second degree in Texas if the amount of marijuana possessed is 2000 pounds or less but more than 50 pounds. (Tex. Health & Safety Code §481.121(b)(5).) The punishment for a felony of the second degree in Texas is incarceration in the Texas Department of Criminal Justice ranging from two years to 20 years and a fine of not more than $10,000. (Tex. Pen. Code Ann. §12.33.)

Possession of Marijuana more than 2000 Pounds – First Degree

If a person possesses more than 2000 pounds of marijuana, the punishment is incarceration in the Texas Department of Criminal Justice for life or for a term of not more than 99 years or less than five years, and a fine of not more than $50,000. (Tex. Health & Safety Code §481.121(b)(6).)

Legalization Marijuana in TexasAre 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?

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.



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.

“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.” – Former 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.


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.

Cite and Release Law in Texas


Benson Varghese

Managing Partner at Varghese Summersett PLLC
Benson Varghese is the founder and Managing Partner of Varghese Summersett PLLC. He is a prolific writer and has authored hundreds of articles about criminal law in Texas and at the Federal level. His articles have been featured in the Wall Street Journal, Above the Law, and have been selected as Top Blogs by the State Bar of Texas. He was named the Young Lawyer of the Year in 2019 by the Tarrant County Bar Association. Benson led the firm to become one of the 500 fastest growing businesses in the United States by Inc 500 Magazine in 2018. In the same year, the firm was named the Best Law Firm in Fort Worth by the Fort Worth Star-Telegram. The lawyers at Varghese Summersett PLLC exclusively handle criminal defense matters.
Benson Varghese