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THC Possession in Texas

How Decriminalized Hemp & CBD Affects THC

THC FormsMarijuana is becoming more socially accepted in the U.S. for medical and recreational use. In June of 2019, Texas legalized hemp and CBD oil, an extract made from industrial hemp. CBD oil and hemp contain less than 0.3% THC (tetrahydrocannabinol). THC is the main psychoactive compound in marijuana and delivers a high for users.

Since the passage of legalized hemp, confusion about whether Texas accidentally legalized marijuana has generated a lot of buzz. At issue are lab tests which cannot yet determine the percentage of THC in seized marijuana plants or edibles.

Not all counties enforce marijuana laws the same, as prosecutors have discretion to enforce laws more harshly or less harshly. A prosecutor in the Texas Panhandle, for example, may very well choose to treat a possession of marijuana case more seriously in that jurisdiction than a prosecutor in a large metropolitan area like Houston. Since the legalization of hemp in Texas, many urban counties have postponed prosecution of or dismissed misdemeanor marijuana cases.

However, THC and cannabis concentrates are sentenced as felony charges in Texas. Prosecutors will continue to bring these cases, even though testing of the substances may bring challenges. Circumstantial evidence: Vape pens, bongs, pipes, etc. will play a bigger role in these cases. If these are present in the vehicle or home, police will seize these items and assume the substance was not hemp and is illegal.

THC of Any Weight is a Felony Conviction in Texas

Marijuana in Texas is treated separately from other drugs with less than 4 ounces in possession sentenced as a misdemeanor. Marijuana is commonly found in leaf or plant form and can be smoked in joints, baked in brownies and other edibles. Marijuana sentencing is more severe for larger volumes and weights. More than 4 ounces to 5 pounds is a state jail felony with a maximum penalty of 2 years in a state jail facility and $10,000 fine.

By contrast, possession of THC concentrates is treated as a felony in Texas at any weight. Even less than a gram of THC concentrate, oil or edible will be treated as a state jail felony. Even if THC was purchased legally in Colorado and driven back to Texas, you could face serious consequences.

Table depicting sentencing length and fine amounts for possessing cannabis
Hash and Concentrates table depicting sentencing length and fine amounts

Areas of Practice

Real Clients, Real Results

Chuck Lanehart successfully defended two college students on THC possession cases in a rural Texas County. The clients were accused of possessing a total of 500 grams of THC, which could have resulted in a first-degree felony conviction carrying a punishment range of 5-99 years in prison or life in prison, with an optional $50,000 fine. Instead, Chuck presented a compelling mitigation case on behalf of the clients, who today were each placed on a one-year pretrial diversion. Upon completion of the pretrial diversion, each client’s case will be dismissed and each client will be eligible for an expunction.

Quick Facts About Testing Hemp vs Marijuana vs THC

  • Hemp and marijuana look very similar in leaf form and smell similar as well. In fact, most canine units aren’t trained to tell the difference between hemp and marijuana.
  • 3% of THC and less is legally classified as hemp in Texas without a doctor’s approval. 0.3% to 0.5% is legal with a doctor’s approval. Most cannabis products contain 5% to 25% of THC, which is illegal.
  • Simple tests with a microscope allow labs to determine if a plant is marijuana, but not the concentration of THC.
  • THC oils, brownies, gummy bears and similar substances are currently much more difficult to test for THC concentrate.
  • A reliable and legally approved test may not be ready for Texas cases until 2020.

Many defendants are charged with THC possession and are surprised that the edible gummy bears are treated more severely than raw cannabis leaves and plants. THC is available in many forms and goes by many names on the street, in Colorado dispensaries and by law enforcement.

Names: cannabis concentrate, hash, hashish, butane hash oil, marijuana resin, extract, and cannabis oil/CO2 oil can all describe concentrated forms of THC compounds.

Forms: wax, crumble, zhatter, budder, kief, dabs and oils are all forms of THC extracts utilized for vaping and smoking.

  • Street names also include sap, pull-and-snap and honeycomb.
  • These forms of THC are concentrated and can sometimes have as much as 25% THC.
  • Texas law treats this category of THC more severely, as most users have higher amounts of weight in possession when arrested.
  • Repeat offenders are more likely to have this form of THC in possession.

Edibles have greatly expanded the way marijuana can be consumed and make the drug more accessible. Edibles are popular with first-time users of marijuana and have the highest sales at Colorado dispensaries.

Marijuana edibles are no longer limited to “pot brownies.” Most edibles are made from THC oil and not marijuana leaves, meaning this category of cannabis is charged as a felony offense in Texas.

  • Pot brownies, cookies and other desserts rarely made with marijuana leaf, if purchased at a dispensary. Most brownies today are made with THC extract.
  • Gummy bears and cannabis candies: popular with first-time users of marijuana, high school and college students. Edible candies can include chocolates, taffy such as “cheeba chews”, lollipops and more. Most candies are made with THC concentrates.
  • Cannabis cooking oil and butter: a common purchase with chefs and home cooks, these oils allow cannabis to be infused into any meal. Unfortunately, THC is in these oils and can lead to a felony.

Criminal Defense of THC Possession

THC EdiblesWhen someone is charged with possession of THC, it is a far more serious crime than a charge of possession of marijuana. The case may be prosecuted to the full extent of the law, which could result in a felony conviction, a prison term and loss of certain rights as a citizen.

However, the scenarios that lead to an arrest and a formal charge vary and leave much open to interpretation. Your case requires an attorney with experience on the many ways to successfully investigate and defend a drug case and ask hard questions.

  • Did the police officer have legal reasonable suspicion to stop and detain the accused person accused?
  • Did the police officer have legal probable cause to search the accused person, his or her vehicle or residence?
  • Was the police officer’s stop and search properly executed according to law?
  • Was the police interrogation of the accused person conducted pursuant to law?
  • Was the police officer’s stop and search properly documented and recorded?
  • Was the case brought to court within the statute of limitations?
  • Are there speedy trial implications?

Other factors that can affect the outcome of a case are the accused person’s character, previous criminal history and background. All efforts should be made to present the accused person’s best possible character evidence and all mitigating circumstances of the case.