In Texas, marijuana and every other drug are charged under different rules. A bag of marijuana weighing two ounces or less is a Class B misdemeanor. The same THC in a vape cartridge is a Penalty Group 2 controlled substance. There’s no misdemeanor level for it, so even one cartridge is a felony, and because the whole weight of the oil counts, a one-gram cart can be a third-degree felony. For cocaine, meth, pills and the rest, the charge depends on the penalty group and the lab’s weight. And most drug possession cases are decided by how the police found the drugs, not by what the drugs were.
Call (713) 664-4000. Don’t tell the officer, or anyone on a recorded jail call, whose drugs they were.
Marijuana possession in Texas
| Amount (usable plant marijuana) | Level | Range |
|---|---|---|
| 2 ounces or less | Class B misdemeanor | Up to 180 days in jail and a $2,000 fine |
| Over 2 ounces, up to 4 ounces | Class A misdemeanor | Up to 1 year and a $4,000 fine |
| Over 4 ounces, up to 5 pounds | State jail felony | 180 days to 2 years in a state jail |
| Over 5 pounds, up to 50 pounds | Third-degree felony | 2 to 10 years |
| Over 50 pounds, up to 2,000 pounds | Second-degree felony | 2 to 20 years |
| Over 2,000 pounds | First-degree felony | 5 to 99 years or life, up to a $50,000 fine |
That’s Health and Safety Code § 481.121. Concentrates are a different story. THC oil, wax, shatter and vape cartridges are Penalty Group 2, so under a gram is a state jail felony, 1 to 4 grams is third degree and 4 to 400 grams is second degree (§ 481.116). Hemp isn’t marijuana. If the delta-9 THC concentration is 0.3 percent or less by dry weight, it’s legal hemp, and since 2019 the State has had to prove the difference. The reliable way to prove that is a lab test that measures concentration, not just one that detects THC, and a lot of the time the State doesn’t have one. When it doesn’t, we make it answer for that. Our page on what to do if you’re caught with a THC pen goes further.
Cocaine, meth, pills and other drugs
Everything else is graded by penalty group and weight, including the pill binder or the cut. Less than a gram of cocaine, meth, heroin or oxycodone is a state jail felony. The same weight of Xanax is a Class A misdemeanor. Our page on possession of a controlled substance has the full grading table, the mandatory probation rule for small-amount felonies and the overdose defense.
Drug-free zones
Possession gets bumped up if it happens within 1,000 feet of a school, a youth center or a playground, or on a school bus (§ 481.134). Under a gram of a Group 1 drug becomes a third-degree felony. Up to 2 ounces of marijuana becomes a Class A misdemeanor (unless it was inside a private home with no minors there), 2 to 4 ounces becomes a state jail felony, and 4 ounces to 5 pounds becomes a third-degree felony. Above that, and for a gram or more of a Group 1 drug, the minimum sentence goes up five years and the maximum fine doubles. In Houston, a lot of the city sits within 1,000 feet of a school or a playground, so we check the State’s measurements.
RIC court in Harris County
Harris County sends many lower-level drug cases to a specialty docket called RIC court (Responsive Interventions for Change). Most are possession of less than a gram, but cases over a gram can end up there too. The prosecutors in RIC court know their cases don’t go to trial. If a case there is set for trial or a suppression hearing, it gets transferred back to the home court. That’s worth knowing before you decide how to handle a case with a strong suppression issue, because fighting the search can mean more time before the case is resolved. We’ll tell you whether that trade is worth it in your case.
How we defend drug possession charges
The search. Most possession cases start with a traffic stop. If the stop wasn’t legal, or it was dragged out to wait for a dog without reasonable suspicion, the drugs can be suppressed. See what grounds police need for a drug search.
Whose drugs they were. Being near drugs, or in the same car, isn’t possession. The State has to show you knew about them and controlled them, with facts that tie them to you personally. See the legal definition of possession and drugs found in a car.
The lab. A field test isn’t a lab result, and in THC cases the concentration test is where a lot of the State’s cases are thin. Jay Blass Cohen is an ACS-CHAL Forensic Lawyer-Scientist trained in forensic chromatography, and we read the lab’s raw data and chain of custody ourselves.
Your license and your record
A felony drug conviction brings an automatic driver’s license suspension. It’s 90 days on paper, but it can last up to two years if you don’t finish a state-approved drug education course. A misdemeanor drug conviction can bring the same suspension if you have a drug conviction for an offense in the three years before this one, or if the judge orders it (Transportation Code §§ 521.372, 521.374). Deferred adjudication isn’t a conviction, so it doesn’t trigger the automatic suspension. A dismissed case can usually be expunged, although depending on why it was dismissed you may have to wait for the limitations period to run, and a dismissal that comes after deferred adjudication can’t be expunged at all. A misdemeanor possession that ends in deferred adjudication can usually be sealed with an order of nondisclosure. See our pages on expunctions and orders of nondisclosure.
Results
A Harris County client stopped for driving on the light rail tracks was charged with DWI, second offense, and possession of a controlled substance. Both charges were dismissed in the middle of trial. See more of our case results. Prior results do not guarantee a similar outcome.
Charged with drug possession in Houston? Call Blass Law
Jay Blass Cohen has defended drug cases in Houston since 2009 and has never worked for the prosecution. We’ll look at the stop and the lab work before we talk about any plea. For every other drug charge, see our Houston drug charges page.
Call (713) 664-4000. If you were arrested this week, call now, while the stop video is still easy to get.
Reviewed by Jay Blass Cohen, founder of Blass Law PLLC, ACS-CHAL Forensic Lawyer-Scientist, certified Drug Recognition Expert, and SFST instructor, serving Houston since 2009. This article is general information, not legal advice for your situation. Prior results do not guarantee a similar outcome.