In Texas marijuana charges account for about half of all drug-related charges. Nearly all of these are for simple possession of the drug. If you have been charged or received a ticket for possession of marijuana, an Austin marijuana lawyer or attorney in another city can help ensure the police follow the law as they attempt to build a case against you.
Definitions of Marijuana
As with other cities in Texas, when you’re in Austin it is Texas state law that prevails when it comes to marijuana prohibition. The term marijuana, or “marihuana” as the Health & Safety code puts it, means the plant Cannabis sativa, whether alive or not, the plant’s seeds, and every “compound, manufacture, salt, derivative, mixture, or preparation” of the species. The term does not include:
- resin extracted from the plant or a compound, manufacture, salt, derivative, mixture, or preparation of the resin
- the aged stalks of the plant or fiber made from the stalks
- oil or cake made from the seeds of the plant;
- a compound, manufacture, salt, derivative, mixture, or preparation of the mature stalk, fibers, cake, or oil
- sterilized seeds of the plant that are not going to germinate
Importantly, THC (or synthetic marijuana derivatives) in not considered marijuana in Texas, which sets it apart from many other states. If an officer says he saw or smelled marijuana on or in the vicinity of a person, he is actually making quite an extraordinary diagnostic claim. Identifying a substance as marijuana is like claiming to instantly diagnose plant material as Cannabis Sativa L.
There are over 150 plants in the Cannabaceae family, not to speak of thousands of other “green leafy substances” which need to be excluded. There are several subspecies of cannabis as well– indica, sativa and ruderalis.
Seeds and stems bring up an interesting question too. The definition of marijuana excludes many items including oil, cake, salts and fibers etc from stalks or sterilized. Those items are not supposed to be included when the government weighs your marijuana. Defense attorneys refer to this action as “removing seeds and stems”. In my experience, I never saw a case involving oil, cakes, or salts.
It’d be unreliable to trust the police or a DPS lab to fully remove seeds and stems before the weighing takes place. Those agents have no incentive to check because our marijuana appellate courts have shifted the burden of proof to the defendant, which is not how the law is supposed to work in criminal cases.
Weight issues comes up most often in cases that are close to a statutory limit. For example, over 4 ounces is a felony, but less than 4 is a misdemeanor. However, any usable amount up to two ounces is a class B so most joints are never reweighed.
What is THC then?
Well, according to the statues, it is a controlled substance but not marijuana. It falls into Penalty Group 2, the second most severe. Any amount of a Penalty Group 2 substance will bring felony charges, even a minute amount!
Penalties for POM charges in Austin
You can be charged with simple possession of marijuana (POM) if you knowingly or intentionall” possess a “usable” amount of pot. Depending on the weight of marijuana in the individual’s possession, the offense is punishable as a Class B misdemeanor, Class A misdemeanor, state jail felony, felony of the third or second degree, or life felony. If you are only found with drug paraphernalia, or your charge is reduced to a possession of drug paraphernalia charge, it is a Class C misdemeanor.
According to the Health and Safety Code section 481.121, an individual can be charged with cultivation of weed if they cultivate or grow marijuana plants. The punishments for certain plant amounts are:
- 2 ounces or less – it’s a Class B misdemeanor
- More than 2 ounces, but less than 4 ounces – Class A misdemeanor
- More than 4 ounces, but less than 5 pounds – State jail felony
- More than 5 pounds, but less than 50 pounds – Felony of the third degree
- More than 50 pounds, but less than 2,000 pounds – Felony of the second degree
- More than 2,000 pounds – Felony of the first degree
Additionally, people who plant, cultivates, harvest or manufacture marijuana or cannabis plants in Austin are subject to forfeiture of the plants. Police have the authority to seize the plants and any property associated with the cultivation.
The Code of Criminal Procedure allows the police to take any property used or “intended to be used” in committing a drug felony. They can take possession of your car, home, or any other belonging when you are accused of having drugs. Asset forfeiture law is a civil action, not a criminal action, so there doesn’t need to be a conviction for this expropriation to occur.
A person can be charged with the trafficking of drugs, including marijuana, if he or she knowingly or constructively transfers marijuana to someone else in the following amounts:
- ¼ ounce or less with no receiving payment – Class B misdemeanor
- ¼ ounce or less with payment (a sale) – Class A misdemeanor
- More than ¼ ounce, but less than 5 pounds – State jail felony
- More than 5 pounds, but less than 50 pounds – Felony of the second degree
- More than 50 pounds, but less than 2,000 pounds – Felony of the first degree
- More than 2,000 pounds – Felony of the first degree
Charges of marijuana delivery are defined under the Texas Health and Safety Code as well. According to section 481.122, you can be charged with delivery of weed to a child if they knowingly sell, deliver, or distribute marijuana to an individual under 18 or to an individual who is enrolled in a primary or secondary school. This offense is punishable as a felony of the second degree, a very serious classification.
Additionally, the Texas Tax Code also sets potential civil penalties. The statute is not usually used in simple possession cases, but the code does require that taxes must be paid on illicit drugs. Dealers of drugs who possess over specified amounts can be charged with tax evasion!
Finally, the state of Texas can suspend your drivers license for up to six months following a conviction of any drug offense.
As if things couldn’t get any worse..if you have prior drug convictions on your record and are facing a repeat drug possession charge, your situation will be seriously escalated. It’s best to consult with a felony attorney in these cases as they tend to get complicated.
Resources for Marijuana Laws