Unlike most other crimes involving controlled substances, marijuana is not included in a penalty group. The penalties for a crime involving marijuana depend upon whether the crime involved delivery or possession and the amount of marijuana involved.

As opposed to the Texas statutes that criminalize the “delivery and manufacturing” of other drugs, the phrase “possession with intent to deliver” does not appear in the marijuana offense statutes. The harsh penalties that apply to possession of large quantities of marijuana nevertheless imply an intent to deliver. An intent to deliver need not be proved, however, if possession is charged.

The definition of “manufacturing” drugs in the Texas Controlled Substances Act excludes marijuana. Unlike federal law and the law of many states, Texas has no law that prohibits growing or cultivating marijuana. If you grow marijuana, however, you are in possession of the marijuana you grow. The penalties for possession apply to marijuana that you grow even if you have not yet harvested the plants.

Texas law formerly referred to possession of more than 50 pounds of marijuana as “aggravated possession.” Some people still use that term but the term is no longer used in the Texas statutes. Regardless of what the offense is called, the penalty for possessing more than 50 pounds is still severe.

The knowing or intentional delivery of marijuana is a crime. The information we provide about the meaning of “delivery” of controlled substances that are included in penalty groups applies equally to delivery of marijuana. Be sure to read our article on drug delivery if you are arrested for delivery of marijuana.

Marijuana Delivery Penalties

Although Texas no longer classifies marijuana as a narcotic, state law continues to authorize harsh sentences for marijuana delivery. Unlike most jurisdictions, Texas law authorizes a life sentence for the delivery of very large amounts of marijuana. Texas law also imposes a minimum sentence for the delivery of large quantities of marijuana.

The penalty for delivering marijuana depends upon the amount of marijuana involved and (if the delivery involved less than a quarter ounce) whether the defendant sold the marijuana. A sale of marijuana means exchanging the marijuana for anything of value. Mature stalks and sterilized seeds are excluded when weighing marijuana.

  • One-fourth ounce or less
    • If the defendant gave away the marijuana and received nothing in exchange, the crime is a Class B misdemeanor, punishable by a maximum jail sentence of 180 days.
    • If the defendant received remuneration (anything of value) in exchange for delivering the marijuana, the crime is a Class A misdemeanor, punishable by a maximum jail sentence of 1 year.
  • More than one-fourth ounce but not more than 5 pounds
    • The crime is a state jail felony, punishable by a state jail sentence of not less than 180 days or more than 2 years.
  • More than 5 pounds but not more than 50 pounds
    • The crime is a second degree felony, punishable by a prison sentence of not less than 2 years or more than 20 years.
  • More than 50 pounds but less than 2,000 pounds
    • The crime is a first degree felony, punishable by a prison sentence of not less than 5 years or more than 99 years, or by a life sentence.
  • 2,000 pounds or more
    • The crime is punishable by a prison sentence of not less than 10 years or more than 99 years, or by a term of life imprisonment.

Enhancement for crimes involving children

If a person under the age of 18 was used in the commission of the offense, the offense is increased by one degree unless —

  • The offense is a first degree felony, or
  • The maximum sentence for the crime is life imprisonment.

If a person under the age of 18 was made to participate in the offense by the use or threat of force, the offense is a first degree felony unless —

  • The offense is already a first degree felony, or
  • The maximum sentence for the crime is life imprisonment.

Higher maximum penalties may also apply if the crime involved delivery to a child. With limited exceptions, the court has the authority to suspend a sentence of less than 10 years and to place the defendant on community supervision (probation).

Possession of Marijuana

The knowing or intentional possession of a “usable quantity” of marijuana is a crime. The phrase “usable quantity” has no precise definition. It is meant to provide a defense if a defendant is arrested for possessing trace amounts, such as a few flakes of marijuana in a plastic bag. If the amount possessed would enable the defendant to roll a joint, however, Texas courts consider the quantity to be a usable amount.

One court decision affirmed a possession conviction based on a third of a gram that had been rolled into a cigarette. Although a smaller quantity could arguably be smoked in a pipe, a jury might be persuaded that the amount possessed was too small to get a user high and was therefore not a usable amount, given the intended use of marijuana.

Texas has no medical marijuana law. Texas courts have rejected the defense that the possession of marijuana is legally justified as a necessity to relieve pain or to treat a medical condition.

The information we provide about the meaning of “possession” of controlled substances that are included in penalty groups applies equally to possession of marijuana. Be sure to read our article on drug possession if you are arrested for possession of marijuana.

Possession of Marijuana Penalties

The penalty for possession of marijuana depends upon the amount of marijuana possessed. Mature stalks and sterilized seeds are excluded when weighing marijuana.

  • Two ounces or less. The crime is a class B misdemeanor, punishable by a maximum jail sentence of 180 days.
  • More than two ounces but not more than 4 ounces. The crime is a class A misdemeanor, punishable by a maximum jail sentence of one year.
  • More than four ounces but not more than 5 pounds. The crime is a state jail felony, punishable by a state jail sentence of not less than 180 days or more than 2 years.
  • More than five pounds but not more than 50 pounds. The crime is a third degree felony, punishable by a prison sentence of not less than 2 years or more than 10 years.
  • More than 50 pounds but less than 2,000 pounds. The crime is a second degree felony, punishable by a prison sentence of not less than 2 years or more than 20 years.
  • More than 2,000 pounds. The crime is punishable by a prison sentence of not less than 5 years or more than 99 years, or by a term of life imprisonment.

If the possession conviction is for a state jail felony, the crime involves no more than 1 pound of marijuana, and the defendant has no prior felony convictions, the court must suspend the sentence and place the defendant on community supervision (probation). In other cases, the court has discretion to suspend a sentence of less than 10 years and to impose a term of community supervision.

Synthetic Cannabinoids and THC

The marijuana offenses described above apply to marijuana in its natural form (that is, to the cannabis plant or to parts of the plant that have been harvested). Synthetic cannabinoids, commonly known by a variety of street name that include Spice and K2, are included in a penalty group. They are covered by the laws that apply to delivery, possession with intent, or possession of drugs that are included within a penalty group. Our article on synthetic cannabinoids explains the potential penalties associated with the violation of those laws.

Tetrahydrocannabinol, or THC, is the active chemical ingredient in marijuana. It is possible, but uncommon, to extract THC from marijuana and to possess or market THC in its chemical form. The crimes of delivery, possession with intent to deliver, or possession of THC are punishable by the penalties specified in penalty group 2.

Have a Drug Lawyer Help You Today

Conviction of a marijuana offense in Lubbock can have serious consequences that go beyond the punishment imposed. To determine whether defenses are available in your case that might help you avoid those consequences, talk to a lawyer at Hamilton Grant.