Texas Marijuana Laws and Penalties

Possession of Marijuana – Texas Health and Safety Code Section 481.120

A person found with marijuana in his or her “possession” can be found guilty of possession of marijuana. “Possession” is a statutorily-defined term that includes having actual care, custody, control, or management of the marijuana.

Marijuana possession is prohibited if it is done intentionally or knowingly. That is, it must be proven beyond a reasonable doubt that the defendant had some level of awareness that he or she was in fact or was likely to be in possession of marijuana. This can be shown through circumstantial evidence.

A defendant convicted of marijuana possession will be sentenced depending on the amount of marijuana he or she was found to be in possession of. For example, possession of less than two ounces of marijuana is punishable as a Class B misdemeanor; possessing over 2,000 pounds of marijuana is punishable by between 10 and 99 years in prison.


Delivery of Marijuana – Texas Health and Safety Code Section 481.121

Like the term “possession,” “delivery” has a specific statutory definition. It includes actual or constructive transfer of marijuana from one person to another, regardless of whether there is an agency relationship.

Constructive transfer or delivery refers to acts by which marijuana is transferred from one person to another without an actual physical transfer taking place. Dropping off marijuana at a predetermined location so that another person can come and pick it up later is an act of constructive delivery.

Like possession, delivery of marijuana is punished in accordance with the amount of marijuana transferred or delivered. Over 0.25 ounces but less than 5 lbs results in a minimum jail sentence of 180 days. Transferring more than 2000 lbs of marijuana can result in 10 to 99 years in prison, and up to a $100,000 fine.


Manufacture or Cultivation of Marijuana

Cultivation of marijuana – possessing and growing plants for later use – is treated as a “possession” offense and is punished according to the weight of all of the marijuana plants found. The possible penalties are the same as those for possession offenses.


Synthetic Marijuana and Other Similar Substances

Since the federal and local governments began criminalizing marijuana possession, people have attempted to skirt these laws by possessing synthetic or man made substances that are similar to organic marijuana. Texas and other states criminalize the possession and delivery of these synthetic substances as well.

A detailed chemical analysis of the synthetic substance is usually required to determine if the synthetic substance is adequately addressed and prohibited by Texas law. Texas’ laws are intended to be very broad and cover a wide variety of chemical variations that may be present in synthetic cannabis.

The possible penalties for these offenses are similar to those for organic marijuana and (again) mostly depend on the weight of the substance.


Drug-Free School Zones – Texas Health and Safety Code 481.134

Texas law also enhances the potential penalties of marijuana-related offenses that occur within:

  • 1,000 feet of an institution owned, rented, or leased by an institution of higher learning;
  • 1,000 feet of a school or youth center;
  • On a school bus;
  • On the premises of a youth center or playground

The these enhancements may mean longer periods of incarcerations, higher fines, and/or incarceration in prison as opposed to jail.


Defenses to Marijuana-Related Charges

The main defense raised to many drug-related charges – including marijuana charges – attacks the manner in which law enforcement obtained the drugs from the person or residence. It is not uncommon for overzealous law enforcement officers to search a person, or his or her belongings, residence, and/or car without the legal authority to do so. When police overstep the law, evidence they obtain from their actions can be challenged and possibly kept out of court.In most cases, officers need a search warrant based on probable cause in order to search a residence or other place where a person might be expected to have a sense of privacy. There are exceptions to this requirement for a warrant, but they apply only in certain, rather specific instances. In order for these exceptions to apply, the law enforcement officers must make specific and detailed reports and narratives that include the facts that made obtaining a warrant from a judge either impractical or impossible under the circumstances.The “fruit of the poisonous tree” doctrine is the legal argument used to keep evidence of illegally-obtained drugs like marijuana out of court. The argument says that if it were not for the illegal search, law enforcement would not have found the marijuana in question. Courts are not inclined to reward “bad behavior” by police by allowing evidence in court that was obtained illegally. As a way of deterring future bad behavior by police, courts will keep the “fruits” of the illegal search from being used in a criminal proceeding.
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