Marijuana Defense

Texas law provides for harsh penalties related to the use, possession, cultivation and delivery of marijuana (also known as cannabis, pot, or weed). A recent study by the American Civil Liberties Union (ACLU) shows that Texas has one of the highest arrest rates for the possession of marijuana in the United States.

In fact, more than 74,000 people were arrested for marijuana possession in Texas in 2010. More than 97% of those arrests were for the simple possession of two (2) ounces or less of marijuana.

The crime of possession of marijuana requires proof that a person knowingly or intentionally possesses a usable quantity of marihuana. For purposes of the marijuana possession laws in Texas, the term “possession” means the actual care, custody, control or management of the marihuana.

The possession of cannabis is a voluntary act if the possessor knowingly obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to permit him to terminate his control.

Attorney for Marijuana Crimes in Texas

If you were arrested for any type of marijuana crime including possession, possession with intent to deliver, cultivation or trafficking, then contact an experienced criminal defense attorney in San Antonio, TX.

Don Flanary represents clients on serious drug crimes with an emphasis on marijuana defense throughout the greater San Antonio area. He aggressively fights drug cases throughout Bexar County and the surrounding counties of Kendall County, Comal County, Guadalupe County, Wilson County, Atascosa County, Medina County, and Bandera County.

Call (210) 738-8383 today for a free consultation. 


Penalties for Marijuana Crimes in Texas

The following penalties apply to crimes involving the possession of marijuana under Health and Safety Code, Section 481.122:

  • Class B Misdemeanor: 2 ounces or less
  • Class A Misdemeanor: 4 ounces or less but more than 2 ounces
  • State Jail Felony: 5 pounds or less but more than 4 ounces
  • Third-Degree Felony: 50 pounds or less but more than 5 pounds
  • Second-Degree Felony: 2,000 pounds or less but more than 50 pounds
  • 5-99 years or life and a fine not to exceed $50,000: more than 2,000 pounds

The penalties for the delivery of marihuana under Health and Safety Code, Sec. 481.120 include:

  • Class B Misdemeanor: 1/4 of an ounce or less and no remuneration is received by deliverer
  • Class A Misdemeanor: 1/4 ounce or less and deliverer receives remuneration
  • State Jail Felony: Over 1/4 ounce and less than 5 pounds
  • Second-Degree Felony: Over 5 pounds but less than 50 pounds
  • First-Degree Felony: Over 50 pounds but less than 2,000 pounds
  • 10-99 years or life and a fine not to exceed $100,000: 2,000 pounds or more 

List of Marijuana Crimes in Texas

Marijuana related crimes in Texas include: 

  • Possession of Marijuana;
  • Felony Possession of Marijuana;
  • Possession with Intent to Deliver Marijuana; 
  • Sale of Marijuana; 
  • Delivery of Marijuana; 
  • Cannabis Cultivation / Grow House Operations;
  • Trafficking in Marijuana; and
  • Crimes involving THC Concentrates / Oils / Edibles / Hash. 

Definition of Marijuana under Texas Law

Under Texas law, the term “marihuana” is defined as “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.” The legal definition of marijuana does not include:

  • the resin extracted from a part of the plant or a compound, manufacture, salt, derivative, mixture, or preparation of the resin;
  • the mature stalks of the plant of fiber produced from the stalks;
  • oil or cake made from the seeds of the plant;
  • a compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, fiber, oil, or cake; or
  • the sterilized seeds of the plant that are incapable of beginning germination.

Although it doesn't make a lot of sense, marijuana concentrates such as extracts, wax, oils or hashish (even if it has the same or less THC) are not included within the definition of marijuana. On the street, marijuana concentrates are often called honey oil, honey wax or shatter.


Crimes Involving Marijuana Concentrates

Although the possession of less than four ounces of marijuana is a misdemeanor, the possession of even a tiny amount of concentrate, extracts, wax, oils or hashish (even if it has the same or less THC) is charged as a felony in the State of Texas. Instead, marijuana concentrates are considered to be tetrahydracannibinol (THC) which is classified in Penalty Group 2.

Under Health and Safety Code, SEC. 481.116, the penalties for marijuana concentrates include:

  • State Jail Felony: less than one gram is punishable by up to 6-months to 2-years in jail, and a fine up to $10,000.
  • Third-Degree Felony: one gram or more but less than four grams is punishable by up to 2-10-years in jail, and a fine up to $10,000.
  • Second-Degree Felony: four grams or more but less than 400 grams is punishable by 2-20-years in jail, and a fine up to $10,000.
  • First-Degree Felony and a fine not to exceed $50,000: 400 grams or more is punishable by 10-years-lifetime imprisonment, and a fine up to $50,000.

Other penalties for the possession of marijuana concentrates include a driver’s license suspension for a drug offense conviction.


Possession of Marijuana Paraphernalia

Under Texas law, any item used for the purpose of using, storing or cultivating marijuana, hashish or concentrates is considered drug paraphernalia. Possession of any marijuana paraphernalia is classified as a Class C misdemeanor punishable by a fine no greater than $500. The crimes are more serious for paraphernalia used to manufacture, deliver or possess with intent to deliver any such paraphernalia 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.

The crimes for possession of marijuana paraphernalia are more serious if the item is used to manufacture, deliver, or possess with intent to deliver. Those offenses are classified as a Class A Misdemeanor punishable by a term of imprisonment no greater than 1 year and/or a fine no greater than $4,000.


Marijuana Crimes Prosecuted in Federal Court

Marijuana offenders had the shortest average term of imprisonment of all drug types. The average sentence was more than seven (7) years and the median was 5 years. A majority of marijuana offenders received a sentence of more than one (1) year up to and including five (5) years in prison.

Learn more about the way drug crimes are prosecuted in federal court in the San Antonio Division of the Western District of Texas.


Additional Resources

Penalties for Marijuana Crimes in Texas - Visit the website of the National Organization for the Reform of Marijuana Laws (NORML) to learn more about Texas laws and penalties for marijuana crimes including possession, sale, cultivation, hash and concentrates, and paraphernalia. Also find the misdemeanor penalties that can be imposed for the possession of marijuana paraphernalia in Texas.


Lawyer for the Defense of Marijuana Crimes in Bexar County, TX

If you were charged with a crime related to the use, possession, possession with intent to deliver, sale, or cultivation of marijuana, then contact Don Flanary, an experienced criminal defense attorney in San Antonio, TX.

Don Flanary is experienced in fighting criminal charges for the possession of marijuana under Health and Safety Code, SEC. 481.121. Don Flanary also represents clients charged with related offenses for the operation of a grow house, delivery of marihuana, and delivery of marihuana to a child in violation of Health and Safety Code, Section 481.122.

Whether you are charged with the misdemeanor possession of one-fourth of an ounce or less or the more serious offense of trafficking 2,000 pounds or more of cannabis, Attorney Don Flanary can help you fight the charges.

All to find out more about important defenses for the crime of intentionally or knowingly possessing marijuana.


This article was last updated on Friday, December 30, 2016.