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Texas Marijuana Laws

Penalty Details

Possession

Possession of 2 ounces or less of marijuana is a Class B misdemeanor, punishable by up to 180 days imprisonment and a fine not to exceed $2,000.

Possession of between 2 and 4 ounces of marijuana is a Class A misdemeanor, punishable by imprisonment of up to 1 year and a fine not to exceed $4,000.

Possession of between 4 ounces and 5 pounds of marijuana is a felony, punishable by a mandatory minimum sentence of 180 days imprisonment, a maximum of 2 years imprisonment, and a fine not to exceed $10,000.

Possession of between 5 pounds and 50 pounds of marijuana is a felony, punishable by a mandatory minimum sentence of no less than 2 years imprisonment, a maximum sentence of 10 years imprisonment, and a fine not to exceed $10,000.

Possession of between 50 pounds and 2,000 lbs of marijuana is a Second Degree felony, punishable by a mandatory minimum sentence of 2 years imprisonment, a maximum sentence of 20 years imprisonment, and a fine not to exceed $10,000.

Possession of more than 2,000 pounds of marijuana is a felony, punishable by a mandatory minimum sentence of 5 years, a maximum sentence of 99 years, and a fine of no more than $50,000.

See

  • Texas Stat. Code § 481.121
  • Texas Stat. Code § 12.33
  • Texas Stat.Code § 12.34 
  • Texas Stat.Code § 12.35
  • Texas Stat. Code § 12.21
  • Texas Stat. Code § 12.22

Sale

The sale or delivery of 7 grams of marijuana or less, as a gift, is a misdemeanor, punishable by up to 180 days imprisonment and a fine not to exceed $2,000.

The sale or delivery of 7 grams of marijuana or less, is a misdemeanor, punishable by imprisonment of up to 1 year and a fine not to exceed $4,000.

The sale or delivery of between 7 grams and 5 pounds is a felony, punishable by a mandatory minimum sentence of 180 days imprisonment, a maximum of 2 years imprisonment, and a fine not to exceed $10,000.

The sale or delivery of between 5 pounds and 50 pounds of marijuana is a second degree felony, punishable by a mandatory minimum sentence of 2 years imprisonment, a maximum sentence of 20 years imprisonment, and a fine not to exceed $10,000.

The sale or delivery of between 50 pounds and 2,000 pounds of marijuana is a first degree felony, punishable by a mandatory minimum sentence of 5 years imprisonment, a maximum sentence of life imprisonment, and a fine not to exceed $10,000.

The sale or delivery of more than 2,000 pounds of marijuana is a felony, punishable by a mandatory minimum sentence of 10 years in prison, a maximum sentence of life imprisonment, and a fine not to exceed $100,000.

Selling marijuana to a child is a Second Degree felony, punishable by a mandatory minimum sentence of 2 years imprisonment, a maximum sentence of 20 years imprisonment, and a fine not to exceed $10,000.

See

  • Texas Stat.Code § A481.120 
  • Texas Stat. Code § A481.122
  • Texas Stat. Code § 12.32
  • Texas Stat. Code §12.33
  • Texas Stat. Code § 12.35
  • Texas Stat. Code § 12.21
  • Texas Stat. Code § 12.22

Cultivation

Cultivation in Texas will be punished based upon the aggregate weight of the plants found. See the “Possession” section for further penalty details.

Hash & Concentrates

Hashish and concentrates are not considered marijuana.

See

  • Texas Stat, Code § 481.002(26)(A)

Possession of hashish or concentrates is a crime. If hashish or concentrates is less than one gram, the offense is considered a state jail felony punishable by term of imprisonment no less than 180 days and no greater than 2 years and a fine no greater than $10,000.

If the amount of hashish or concentrates is more than 1 gram but less than 4 grams, the offense is considered a felony of the third degree punishable by a term of imprisonment no less than 2 years and no greater than 10 years and a fine no greater than $10,000.

If the amount of hashish or concentrates is greater than 4 grams but less than 400 grams, the offense is considered a felony in the second degree punishable by a term of imprisonment no less than 2 years and no greater than 20 years and a fine no greater than $10,000.

If the amount of hashish or concentrates is more than 400 grams, the offense is punishable by lifetime imprisonment or a term of imprisonment no less than 10 years and no greater 99 years and a fine no greater than $50,000.

See

  • Texas Stat. Code § 481.116
  • Texas Stat. Code § 12.35
  • Texas Stat. Code § 12.34
  • Texas Stat. Code § 12.33

Manufacturing and selling hashish or concentrates also is a crime. If the amount of hashish or concentrates is less than 1 gram, the offense is considered a state jail felony punishable by a term of imprisonment no less than 180 days and no greater than 2 years and a fine no greater than $10,000.

If the amount of hashish or concentrates is more than 1 gram but less than four grams, the offense is considered a felony of the second degree punishable by a term of imprisonment no less than 2 years and no greater than 20 years and a fine no greater than $10,000.

If the amount of hashish or concentrates is more than 4 grams but less than 400 grams, the offense is considered a felony of the first degree punishable by a term of imprisonment no less than 5 years and no greater than 99 years and a fine no greater than $10,000.

If the amount of hashish or concentrates is greater than 400 grams, the offense is punishable by lifetime imprisonment or a term of imprisonment no less than 10 years and no greater than 99 years and a fine no greater than $100,000.

See

  • Texas Stat. Code § 481.113
  • Texas Stat. Code § 12.35
  • Texas Stat. Code § 12.33
  • Texas Stat. Code § 12.32

The sale of hashish or concentrates to a person under 18 years of age or a person enrolled in primary or secondary school is a felony, punishable by a term of imprisonment no less than 2 years and no greater than 20 years and a fine no greater than $10,000. This is only applicable if the offender is older than 18 years of age.

See

  • Texas Stat. Code § 481.122
  • Texas Stat. Code §12.33

Any device used for the purpose of creating hashish or concentrates is considered drug paraphernalia. Possession of any such device is a Class C misdemeanor punishable by a fine no greater than $500. Manufacturing, delivering, or possessing with intent to deliver any such device is a Class A Misdemeanor punishable by a term of imprisonment no greater than 1 year and/or a fine no greater than $4,000.

See

  • Texas Stat. Code § 481.002(17)
  • Texas Stat. Code § 481.125
  • Texas Stat. Code § 12.23
  • Texas Stat. Code § 12.21

If any of the previously listed offenses occurred within 1,000 feet of a school, youth center or playground, or within 300 feet of a public swimming pool or video arcade, the degree of the offense is increased by one level; i.e. if the offense was a felony of the third degree it is now a felony of the second degree and if the offense was a felony of the second degree it is now a felony of the first degree, etc.

See

  • Texas Stat. Code § 481.134(b)

If the perpetrator of any of the previously listed offenses was found to have involved a person under the age of 18, the degree of the offense is increased one level; i.e. if the offense was a felony in the third degree it is now a felony of the second degree, and if the offense was a felony of the second degree it is now a felony of the first degree, etc.

See

  • Texas Stat. Code § 481.14

Paraphernalia

Possession of paraphernalia is a Class C misdemeanor, punishable by a fine not to exceed $500.

Selling, or possessing with intent to sell or deliver, paraphernalia is a Class A misdemeanor, punishable by imprisonment of up to 1 year and a fine not to exceed $4,000, unless the offender has previously been convicted of this offense, in which case the offense is a felony, punishable by a mandatory minimum sentence of 90 days imprisonment and a maximum sentence of 1 year imprisonment.

Selling paraphernalia to a minor is a state jail felony, punishable by a mandatory minimum sentence of 180 days imprisonment, a maximum of 2 years imprisonment, and a fine not to exceed $10,000.

See

  • Texas Stat. Code § 481.125
  • Texas Stat. Code § 12.35
  • Texas Stat. Code § 12.21
  • Texas Stat. Code § 12.23

Miscellaneous

Falsifying a drug test, or possessing with intent to use any material for the falsification of a drug test, is a Class B misdemeanor, punishable by up to 180 days imprisonment and a fine not to exceed $2,000.

See

  • Texas Stat. Code § A481.133
  • Texas Stat. Code § 12.22

A person’s driver’s license is automatically suspended on final conviction of: (1) an offense under the Controlled Substances Act or (2) a drug offense.

See

  • Texas Stat. Code § 521.372
Drugged Driving

This state has a per se drugged driving law enacted. In their strictest form, these laws forbid drivers from operating a motor vehicle if they have a detectable level of an illicit drug or drug metabolite (i.e., compounds produced from chemical changes of a drug in the body, but not necessarily psychoactive themselves) present in their bodily fluids above a specific, state-imposed threshold. 

Mandatory Minimum Sentence

When someone is convicted of an offense punishable by a mandatory minimum sentence, the judge must sentence the defendant to the mandatory minimum sentence or to a higher sentence. The judge has no power to sentence the defendant to less time than the mandatory minimum. A prisoner serving an MMS for a federal offense and for most state offenses will not be eligible for parole. Even peaceful marijuana smokers sentenced to “life MMS” must serve a life sentence with no chance of parole.

Texas Drugged Driving

In Texas, a person commits a DUI if the person is intoxicated while operating a motor vehicle in a public place. Texas Penal Code Ann. § 49.04 (Vernon 2009).

Affirmative Defense

The fact that the defendant is or has been entitled to use the alcohol, controlled substance, drug, dangerous drug, or other substance is not a defense. Id. § 49.10.

Implied Consent

  • If a person is arrested for an offense arising out of acts alleged to have been committed while the person was operating a motor vehicle in a public place the person is deemed to have consented to submit to the taking of one or more specimens of the person’s breath or blood for analysis to determine the alcohol concentration or the presence in the person’s body of a controlled substance, drug, dangerous drug, or other substance. Texas Transp. Code Ann. § 724.011(a) (Vernon 2009).
  • A specimen may not be taken if a person refuses to submit to the taking of a specimen designated by a peace officer. Id. § 724.013.
  • A person’s refusal of a request by an officer to submit to the taking of a specimen of breath or blood, whether the refusal was express or the result of an intentional failure to give the specimen, may be introduced into evidence at the person’s trial. Id. § 724.061.
  • Defendant arrested for DUI is not entitled to consult an attorney before deciding whether to take a test. Texas courts have ruled that since test is not ‘testimony,’ it isn’t protected. De Mangin v. State, 700 S.W.2d 329 (1985).
  • Officer is not required to allow defendant to choose which type of specimen he wanted to provide. Coggins v. State, 160 S.W.3d 177 (2005).
  • Implied consent statutes did not do not shield a defendant from blood draws pursuant to validly issued warrant. Dye v. State ,WL 361289 (2003).

Penalties

  • First offense Class B Misdemeanor – fine of up to $2,000; jail for 72 hours and up to 180 days; community service for 24 hours up to 100 hours; license suspension of up to one year; surcharge of $1,000 or $2,000 per year for three years. Id. § 49.04.
  • Second offense Class A Misdemeanor – fine of up to $4,000; jail for 72 hours to 365 days; community service for 80 hours to 200 hours; license suspension for 180 days to two years; surcharge of $1,500 or $2,000 per year for three years.
  • Third and subsequent offense Third Degree Felony – fine of up to $10,000; jail for two to ten years; community service for 160 hours to 600 hours; license suspension for 180 days to two years; surcharge of $1,500 or $2,000 per year for three years.

Other Penalties & Penalty Enhancer

  • If it is shown on the trial of an offense under this section that at the time of the offense the person operating the motor vehicle had an open container of alcohol in the person’s immediate possession, the offense is a Class B misdemeanor, with a minimum term of confinement of six days. Id. § 49.04.
  • DUI while vehicle is occupied by a passenger who is younger than 15 years of age is a felony. Id. § 49.045.

Sobriety Checkpoints

Texas has found sobriety checkpoints to be illegal under Texas interpretation of federal Constitution.

  • The checkpoint upheld by the U.S. Supreme Court in Michigan v. Sitz, was authorized by legislation. In light of the fact that no such legislative authority grants Texas law enforcement the right to conduct checkpoints, checkpoints are illegal under the U.S. Constitution. State v. Holt, 887 S.W. 2d 16 (1994).

Case Law

Smithhart v. State, 503 S.W.2d 283 (1973) — Where evidence was insufficient to show that drug taken by defendant affected him to degree which would render him incapable of safely driving vehicle, conviction of defendant for operating motor vehicle while under influence of drugs could not be obtained on basis that valium taken by defendant may have had unusually severe effect on him because he had also been drinking vodka.

Lewis v. State, 708 S.W.2d 561 (1986) — Testimony that defendant had used marijuana and alcohol and was he was operating erratically supported DUI conviction, despite no chemical evidence.

Dickerson v. State, WL 475800 (2006) — Evidence of erratic driving and non-cooperative attitude, the fact that defendant admitted to drinking, and the fact that the defendant failed field sobriety tests were factually sufficient to convict for DUI.