Medical Marijuana in Texas
Attitudes towards marijuana use have changed over the last ten years. However, recreational marijuana is still illegal in Texas. Instead, Texas is one of the 31 states in the U.S. that allows marijuana to be consumed for medicinal purposes. If a person needs medical marijuana, he or she must have a valid prescription from a doctor.
The 2015 Texas Compassionate Use Act in conjunction with the passage of Senate Bill 339, allows Texans to use low-THC cannabis to treat epilepsy. The Texas Department of Public Safety (DPS) has a secure registry of physicians who are allowed to write prescriptions to those suffering from intractable epilepsy.
Despite all this recent legislation, having a prescription for medical marijuana is not a valid defense in court. A person carrying marijuana for medicinal purposes may still be charged with possession or possession with intent to distribute.
If you or someone you know has been criminally charged for possessing medical marijuana, it is vital that you contact an experienced criminal defense attorney.
Medical Marijuana Attorneys in San Antonio, Texas
Low-THC marijuana usage is legal in Texas with a valid prescription. However, Texas laws have not updated alongside medical marijuana legislation. If you have been arrested for an alleged cannabis crime but had a valid prescription, it is crucial that you seek trusted legal representation.
The attorneys at Flanary Law Firm, PLLC are experienced in criminal defense. Our attorneys understand the logistics of medical marijuana laws. Find an attorney who doesn’t only work hard, but cares for you. Call an attorney at (210) 738-8383 today for a free consultation.
Flanary Law Firm, PLLC defends clients throughout the greater San Antonio area including Leon Valley, Kirby, Live Oak, Terrell Hills, and Universal City.
Overview for Medical Marijuana Laws in Texas
- Medical Marijuana Legislation
- Medical Marijuana Card Requirements
- Stevens v. State
- The Necessity Defense
- Additional Resources
Medical Marijuana Legislation in Texas
On June 1, 2015, the Texas Compassionate Use Act became law through, the Senate Bill 339. This was the first time that Texas allowed medical marijuana usage in the state. Senate Bill 339 allows patients to have access to low-THC cannabis under Texas Occupations Code § 169.001.
The medical marijuana must contain the following to be admissible:
- No more than .05 percent by weight of THC; and
- No less than 10 percent by weight of CBD.
Cannabidiol (CBD) is a non-psychoactive chemical found naturally in cannabis. CBD has soothing medical benefits such as pain and nausea relief. The chemical CBD has been known to ease seizures and has cancer-fighting properties. This is why the Texas Compassionate Use Act allows medical marijuana for epilepsy patients.
However, the chemical in cannabis called tetrahydrocannabinol (THC) does create some controversy. THC is a psychoactive constituent of marijuana. Consuming THC can affect the brain’s endocannabinoid system (ECS). THC can cause light hallucinogenic effects and create a “high” feeling in users.
The Texas Compassionate Act allows qualified physicians to prescribe low-THC cannabis. Legislation only allows patients diagnosed with intractable epilepsy to have access to medical marijuana. Additionally, only physicians on the Compassionate Use Registry are allowed to prescribe cannabis. Patients with a prescription are limited to how they can consume the medical marijuana. Smoking is prohibited, and instead CBD oils are used to administer cannabis.
How to Obtain a Medical Marijuana Card in Texas
Texas has some of the strictest laws when it comes to medical marijuana. The following is what a patient must do to be able to obtain a Texas Medical Marijuana Card:
- Must be a permanent resident of Texas;
- Must be diagnosed by a doctor with intractable epilepsy;
- A qualified physician under the Compassionate Use Registry determines the risk of the medical use of low-THC cannabis is reasonable in light of the potential benefit for the patient; and
- A second qualified physician under the Compassionate Use Registry has concurred with the determination.
Tim Stevens Medical Marijuana Case in Texas
Stevens v. State was one of the first cases in Texas where a defendant was able to argue that their possession of marijuana was for medicinal purposes. On March 25, 2008, Amarillo resident Tim Stevens was acquitted of charges by raising the medical necessity defense.
Tim Stevens suffered from cyclical vomiting syndrome (CVS). The illness CVS involves sudden, repetitive attacks of severe nausea, vomiting, and physical exhaustion. Stevens had CVS in association with human immunodeficiency virus (HIV), which he was diagnosed with in 1986. Smoking marijuana eased Stevens suffering.
In court, Stevens defense stated his illness was the reason why he possessed less than 4 grams of marijuana. He had no prior criminal record before this charge. Steven’s attorney, Jeff Blackburn, called to the stand Dr. Steve Jenison, the Medical Director of the Infectious Disease Bureau for the Department of Health in New Mexico.
Dr. Steve Jenison testified before the court about New Mexico’s medical marijuana program. He stated that medical marijuana was effective in treating nausea, and how it was more effective than any of the available legal alternatives in Texas. Since all the alternatives were taken orally, Stevens had a hard time keeping the medicines down due to his CVS.
The trial lasted for about 10 hours. In the end, the jury only needed 11 minutes to return with a not guilty verdict. This is the first recorded incident of the necessity defense working for medical marijuana possession in the state of Texas.
Necessity Defense in Bexar County for Medical Marijuana
The necessity defense is an affirmative defense found under justifications in Texas Penal Code § 9.22. When an alleged offender asserts a necessity defense, the jury will be instructed that the alleged conduct was justified under the law of necessity if:
- The alleged offender reasonably believes the conduct is immediately necessary to avoid imminent harm;
- The desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law prescribing the conduct; and
- A legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.
This means it is possible for a person to use the necessity defense for using medical marijuana in the court of law. If a person is in serious pain and suffering due to an illness, he or she may be able to argue that the marijuana was used out of necessity. The urgency to avoid the pain and suffering clearly outweighed the harm caused by possessing marijuana.
The term “reasonable belief” is defined under Texas law as a belief that would be held by an ordinary and prudent person in the same circumstances as the actor.
Take note, possession of up to two ounces of marijuana is a Class B misdemeanor. The penalty for a Class B misdemeanor is punishable by up to 180 days in jail, and a possible fine of up to $2,000. Possession of a greater quantity results in enhanced penalties, which can escalate to felony charges.
Compassionate Use Program – Visit the official website for the Texas Department of Public Safety. Find more information regarding the Texas Compassionate Use Act and Senate Bill 339. Gain access to the bill, information about the Compassionate Use Registry of Texas (CURT), and answers to frequently asked questions.
First Cannabis Medical Necessity Defense – Visit an article hosted by NORML, the National Organization for Reform of Marijuana Laws (NORML). Find more information regarding Tim Stevens, and his attorney Jeff Blackburn.
Lawyers for Medical Marijuana Charges in San Antonio, Texas
Have you been charged with possessing marijuana, but used the substance for medical purposes? Let us help you protect your right to health and safety. Get in contact with the attorneys at Flanary Law Firm, PLLC today.
Flanary Law Firm, PLLC understands all the current legislation regarding medical marijuana. We are firm believers that cannabis used for medicinal purposes should be lawful. Our attorneys want to help protect your right to health. Find an attorney who cares for you. Call the attorneys at (210) 738-8383 for a free consultation.
Flanary Law Firm, PLLC practices law throughout the greater Bexar County area including adjoining counties such as Guadalupe County, Wilson County, Medina County, Kendall County, and Comal County.
This article was last updated September 27, 2018.