Houston Marijuana Crime Lawyers :: The Law Office of Matthew D. Sharp
Don’t be fooled into thinking that the use or possession of marijuana is legal in Texas. Contrary to what people might have heard or read in the media, marijuana is still classified as a Schedule I drug under federal law which puts it in the same category with heroin makes it even more dangerous than cocaine in the eyes of state and federal law enforcement agencies and prosecutors.
Possession, sale or trafficking of marijuana can send someone to jail or prison under federal and state laws in Houston and other communities in the state. The fact that other states have relaxed their marijuana laws does not have any bearing on how Texas handles marijuana offenses. As of now, even a small amount of marijuana may lead to a criminal record if a person is are arrested and convicted of possessing it.
With so much at stake, an aggressive defense to marijuana charges is important to protect a person from the penalties and life-changing consequences of a criminal conviction. Understanding the current drug laws in this state can be helpful in the event that you or a family member are accused of violating them.
Clarifying the Cannabis, Marijuana and Hemp Relationship
Scientifically speaking, hemp, a product with industrial uses such as paper, rope and clothing, and marijuana are derived from the Cannabis sativa plant. The only difference between hemp and marijuana, at least according to scientists, is their purpose. According to federal law, hemp production is just as illegal as marijuana production.
With all of the talk in the media about some states legalizing marijuana use while other states, including Texas, continue to prohibit it, you would think there would be universal agreement on the Cannabis sativa plant. The definition of what is legal or not in Texas is more complex than simply prohibiting growing marijuana plants.
Proposed legislation would make hemp production legal in the state of Texas if passed by lawmakers. Absent other legislation, cultivating marijuana would continue to be illegal even though hemp and marijuana come from the same plant. The answer to this apparent conflict in attitude toward Cannabis sativa lies in the legal definition of marijuana under state law.
Marijuana, as the term is used under state law, is a strain of the Cannabis sativa plant. The Health and Safety Code of Texas defines marijuana as the Cannabis sativa plant, including its seeds or preparations made from the plant. It does not include:
- Resin extracted from the plant
- Mature stalks or fiber produced from the stalks
- Oils or cake made from the plant’s seeds
- Sterilized seeds of the plant that cannot germinate
- Compounds, salts or derivative mixtures made from mature stalks
The federal government is now leaving it to each of the states to decide if they want to make hemp legal. While other states have passed legislation legalizing the production of hemp, until Texas lawmakers take action, cultivating Cannabis sativa will remain illegal.
In the meantime, Texas follows the classifications created under the federal Controlled Substances Act of 1990. Under federal law, marijuana is a Schedule I substance having no approved medical use and possessing a high abuse potential. This places it in the category of a dangerous drug.
Types of Marijuana Charges
Breaking the laws pertaining to marijuana may happen in several ways. The reason for this is that state laws penalize different types of conduct pertaining to marijuana, including:
- Possession of marijuana
- Possession of hash oil
- Distribution and delivery
- Sale or delivery to a child under 17 years of age
- Manufacture, sale or use of drug paraphernalia related to marijuana use or cultivation
The weight of the drug will usually decide how harshly a person convicted of committing marijuana crimes will be treated at sentencing. Higher weights will generally put a person at risk of a longer jail or prison sentence or a higher fine.
Possession of Marijuana
Some states have decriminalized possession of small amounts of marijuana, but Texas is not one of them. Possession of up to two ounces of marijuana is a Class B misdemeanor – a crime – under state law. Possessing larger amounts can increase the charge to a felony.
Sale and Delivery of Marijuana
Cultivating, selling or delivering marijuana is a crime in Texas. As with possession, the severity of the charge, whether it is a misdemeanor or a felony and what degree it will be, depends upon the amount as determined by weight. A higher weight could mean a felony charge and harsh penalties.
A unique feature of the law pertaining to distribution of marijuana is that prosecutors do not have to prove that the transaction included an exchange of money. Giving marijuana away without receiving anything in return will not allow a person to escape a conviction and punishment. A gift is still a crime when it involves marijuana.
Someone in possession of marijuana may not be able to avoid the more serious charges and penalties associated with sale and delivery just because police arrived to make an arrest before it was handed off to another person. Just having the intent to sell is enough for prosecutors to charge someone with the sale of marijuana.
Intentionally selling, possessing, using or manufacturing drug paraphernalia is a felony in Texas. Few people would quarrel with the arrest of someone for using a bong, a water pipe or device generally associated with smoking marijuana, but what about merely owning one without using it? Does that violate state law? How about a scale? Does that fall under the category of illegal drug paraphernalia?
The answer to all of these questions is the same: It depends on the intent of the person in possession of the item. The list of uses to which drug paraphernalia may be put includes the following as they relate to marijuana:
- Planting, cultivating growing or harvesting
- Processing, packing or repacking
- Introducing into the human body
Drug paraphernalia arrests focus on the intent of the person. A water pipe can be used to tobacco products that are perfectly legal, so owning one will usually not lead to criminal charges. A water pipe with marijuana residue, or one that is found in the possession of someone who also has some marijuana on him or her might be all the evidence prosecutors need to prove intent to use the pipe in violation of the law.
Penalties Associated with Marijuana Possession
Marijuana charges and penalties depend upon the amount of the drug that a person cultivates, delivers, sells or possesses. It might be the same drug, but possession of up two ounces will likely result in a person being placed on probation for a B misdemeanor while possession of a pound will result in a state jail felony and at least six months behind bars.
The penalties judges may impose when sentencing someone in possession of marijuana at various weight levels are as follows:
- Two ounces or less: $2,000 fine, a maximum jail sentence of 180 days or both
- Less than four ounces but more than two: Up to a year in jail, a $4,000 fine or both
- Four ounces up to five pounds: $10,000 fine, up to two years in prison or both
The amount of the fines and the length of the prison sentences increase along with the weight until the court may impose a prison sentence from five to 99 years, a $50,000 fine or both on someone convicted of possessing more than 2,000 pounds of marijuana. Other factors besides weight can increase the severity of the penalties. For example, possession of marijuana in a drug-free school zone increases the penalties.
A drug-free school zone is within 1,000 feet of a public or private school or college, a youth center or a playground. It is also within 300 feet of a public swimming pool and video arcade, such as those found in malls. A school bus is also designated as a drug-free zone.
Penalties for Sale or Cultivation of Marijuana
Cultivation and sale of marijuana are punished in the same way. Depending upon the weight that is sold or cultivated, the penalties include:
- Giving away without payment up to seven grams: 180 days in jail and a fine up to $2000, or both
- Selling or cultivating up to Seven grams: One year in jail, a fine up to $4,000 or both
- More than seven grams but less than five pounds: At least 180 days up to two years in prison, a $10,000 fine or both
Punishment increases with each increase in weight until it reaches amounts in excess of 2,000 pounds. At that point, the punishment is at least 10 years up to a maximum of 99 years in prison, a $100,000 maximum fine or both. Sale of marijuana to a child is a felony for which a person might be sentenced to from two to 20 years, a $10,000 fine or both.
Penalties for Drug Paraphernalia Offenses
The severity of the charge and the penalty imposed for a conviction of a crime involving drug paraphernalia vary depending on the activity. Possession of drug paraphernalia is a misdemeanor punishable by only a fine up to $500. Selling the same item is a felony that could lead to a year in jail and a fine up to $4,000, or both. If the sale is to a minor, the penalties increase to at least 180 days in jail up to 2 years in prison with a maximum fine of $10,000.
Getting Help from a Houston Marijuana Attorney
The laws as they apply to possession, sale and growing of marijuana are complex, highly technical and confusing to anyone other than an attorney. For example, a person coming to Texas from a state in which the medical use of marijuana is legal might assume that the permission to use the drug continues into Texas. Such an assumption could result in the person’s arrest while in Texas where marijuana is still very much illegal.
Someone accused of violating Texas marijuana laws would benefit from consulting with a Houston criminal defense attorney whose review of the facts of the case might reveal that police violated search and seizure or other rules in making the arrest. A knowledgeable marijuana defense attorney is in the best position to design a defense that challenges the evidence against the accused.
About The Law Office of Matthew D. Sharp
If you have been charged with a marijuana-related crime, whether it is a misdemeanor or a felony, you need the defense of an aggressive, experienced attorney. The details of Texas’ marijuana laws are difficult to navigate alone. Matthew Sharp understands how stressful these situations can be and is prepared to offer the defense you require. Contact The Law Office of Matthew D. Sharp at (713) 868-6100 for a free consultation.
Americans for Safe Access: The mission of Americans for Safe Access (ASA) is to ensure safe and legal access to cannabis (marijuana) for therapeutic uses and research. ASA works with our grassroots base of over 50,000 members to effect change using public education and direct advocacy at the local, state, and federal level.
Drug Enforcement Agency – Marijuana: Read the DEA’s Drug Fact Sheet for more information regarding marijuana/cannabis.
Law Enforcement Against Prohibition: LEAP is a nonprofit organization made up of current and former members of the law enforcement and criminal justice communities who are speaking out about the failures of our existing drug policies.
Marijuana Policy Project: MPP is leading the effort in Washington, D.C. to pass federal medical marijuana legislation, as well as to replace marijuana prohibition with a system of sensible regulation and control.
Office of National Drug Control Policy: ONDCP advises the President on drug-control issues, coordinates drug-control activities and related funding across the Federal government, and produces the annual National Drug Control Strategy.
Students for Sensible Drug Policy: Students for Sensible Drug Policy is an international grassroots network of students who are concerned about the impact drug abuse has on our communities, but who also know that the War on Drugs is failing our generation and our society.
Talking to Your Kids–Communicating the Risks: Tips regarding speaking with your children about the risks of marijuana.