By Benson Varghese

Published on: November 16th, 2013 at 1:26 PM
Last Updated: September 11th, 2020 at 3:53 PM

How to Beat a Possession of Marijuana Charge in Texas

Advice from a Fort Worth Criminal Defense Lawyer in 2020

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?

There is a now (at least for the time-being) a pathway to getting misdemeanor marijuana cases reduced or dismissed in Fort Worth. 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.

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 cannabis possession in Texas, call a Fort Worth marijuana lawyer for help. Our dedicated attorneys will explain your rights and establish the best path to follow.

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.

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

In various cases around the state, courts have found two quantities of marijuana that could be titled a ‘usable quantity.’ These include one-half ounce of marijuana, or one hand-rolled cigarette weighing .38 grams. These quantities were established in Carmouche v. State and Andrade v. State, respectively.

Wax and Hash

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.

Possible Defenses for Possession of Marijuana Charges

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.

Our skilled lawyers in Fort Worth 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 evidence: 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:

  • Avoid jail time;
  • Avoid a conviction; and
  • Resolve the case in a manner that allows for an expunction or nondisclosure down the road.

Possession of Marijuana Under Two Ounces

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.

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 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 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).)

Can You Get Your Marijuana Charge Expunged in Fort Worth?

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.

Collateral Consequences of Possession 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.

Because of these potential consequences, anyone facing marijuana charges should consider reaching out to a skilled attorney in Fort Worth for help.

Driver License Suspension

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. 

Are the Views on Possession of Marijuana Changing?

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 of Marijuana in Fort Worth

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. Due to these nuances governing marijuana laws, anyone facing charges in Fort Worth could benefit from speaking with an experienced lawyer.

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.

Reform for Possession

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

The 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 Fort Worth, 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 Fort Worth

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 Fort Worth 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.

Possession of marijuana, in any form, is still illegal in Texas. The “cite and release” legislation that was passed in 2007 does not eliminate the possibility of jail time as punishment. It merely gives officers the ability to cite a person — or give them a summons to appear in court at a later date — to resolve the charge against them.

Even though the cite and release law has been on the books for a decade, few Texas cities and counties have actually implemented cite and release programs — but the list is growing. Recently, Dallas officials began a cite and release program, encouraging officers to cite and release, rather than arrest, people in possession of less than four ounces of marijuana in most circumstances. Houston, Austin and San Antonio are among large cities with similar programs in place.

Cite and release does not decriminalize marijuana possession. Individuals who receive a summons and are released at the scene for a marijuana charge could still end up behind bars. If convicted, the punishment range for any usable amount of marijuana begins at a Class B misdemeanor and goes up to a first-degree felony, based on the amount of marijuana the police find. This means for even the lowest level marijuana charge, jail time is still a possibility.

There are no “fine-only” or ticketable offenses for having a usable amount of marijuana, although possession of drug paraphernalia is a Class C misdemeanor. Citing and releasing individuals accused of certain misdemeanors, including marijuana possession, has been an option since September 1, 2007, when the Texas Code of Criminal Procedure Article 14.06 (c) allowed officers to use cite and release for individuals who:

1. lived in the county where the offense occurred

2. and is charged with:

  • Possession of Marijuana under 2 Ounces (Class B)
  • Possession of Marijuana between 2 and 4 Ounces (Class A)
  • Possession of a Substance in Penalty Group 2-A under Two Ounces (Class B)
  • Possession of a Substance in Penalty Group 2-A Two to Four Ounces (Class A)
  • Criminal Mischief $100-750 (Class B)
  • Graffiti $100-750 (Class B)
  • Graffiti $750-2500 (Class A)
  • Theft $100-750 (Class B)
  • Theft $750-2500 (Class A)
  • Theft of Services $100-750 (Class B)
  • Theft of Services $750-2500 (Class A)
  • Contraband in a Correctional Facility by an Employee or Volunteer
  • Driving While License Invalid

Although the legislature has authorized cite and release for all the offenses listed above for a decade, individuals accused of these offenses continue to be arrested in most counties throughout the state. Individuals do not have a right to be cited and released – instead, the officer has the discretion to cite and release them. Additionally, even counties that have adopted cite and release policies largely focus on cite and release for misdemeanor amounts of marijuana.

Fiscally conservative counties, through the leadership of their elected district attorneys, cooperation of local law enforcement, and approval of county commissioners, have been embracing cite and release to better use the financial resources that are spent on booking, housing, and arraigning individuals charged with these offenses before the cases ever get to court. By taking advantage of this law, cities use their resources to house individuals charged with more serious crimes.

Again, cite and release does not reduce the possible sentence for any offense, including jail time. Cite and release is not available for any felony offense or for any violent offense. Possession of marijuana under two ounces is still punishable by up to 180 days in jail and up to a $2,000 fine. Possession of marijuana between two and four ounces is still punishable by up to one year in jail and a $4,000 fine.

Dallas, Harris, Travis and Bexar Counties are among the small, but growing, list of counties in Texas that have implemented cite and release policies. It will be interesting to see if cite and release continues to gain momentum in Texas.

Contact a Fort Worth Marijuana Attorney for Help with a Case

If you’ve been charged with possession of marijuana in any amount in north Texas, call a Fort Worth marijuana lawyer for legal help.