Colorado is now generally considered the center of cannabis tourism. When the state legalized the recreational use of marijuana in 2014, tourists began flocking there to get a legal high and to enjoy the sights. In 2015, the legal sale of marijuana topped a billion dollars, making the industry a close second to the sale of craft beer. $135 million in taxes and fees were generated for the State.1 Texans who drive home with their purchases of Colorado cannabis may not realize the risk they take when it comes to Texas law. Most of these vacationers drive back through Dalhart and Amarillo, and the number of drug busts in those areas has ballooned since cannabis tourism took off. And the arrests don’t always involve large quantities intended for resale, but most often a quantity intended only for personal use. Consequently, it’s important to understand the varying penalty levels for the types of cannabis possessed before folks decide to place themselves at risk for arrest and prosecution.
I. The Types of Cannabis and the Penalty Levels
Cannabis possession in Texas ranges anywhere from a Class B misdemeanor to a first-degree felony. There is no Class C cannabis possession, though an officer could issue a Class C citation for possession of drug paraphernalia.2 Class B accusations and higher are all arrest-able offenses where the accused is placed into full custodial arrest, booked into jail, and must bond out (if possible) pending resolution of their court case.
This article will not deal with marijuana delivery. Delivery falls within a different punishment range than possession and also involves different weight classes.3 Moreover, it’s rare to be accused of delivering marijuana. Rather, the majority of cannabis charges I’ve seen involve simple possession. Nevertheless, delivery (or possession with the intent to deliver) could be shown when the cannabis was pre-packaged to sell, or the defendant was caught in the act of delivering to another individual.
Neither will the article emphasize drug-free-zone prosecutions. Possessing marijuana in a drug-free zone creates its own set of special problems. Drug-free zones are areas of protection drawn around public and private colleges and universities, schools, youth centers, playgrounds (1,000 feet), public swimming pools, and video arcades (300 feet).4 Generally speaking, the drug-free-zone offense is bumped up to the next-level crime. For instance, a Class B possession would be charged as a Class A when the marijuana was possessed in a drug-free zone. I commonly see drug-free-zone enhancements charged within 1,000 feet of playgrounds and schools, but almost never on a freeway traffic stop (though it’s possible to be driving within 1,000 feet of a school while on the freeway). Beyond this, drug-free zones can bump up the minimum range of punishment when considering felony accusations, and drug-free zones may adversely affect parole eligibility for the offender.
A. Leafy Marijuana
Possession of leafy marijuana subjects a person to arrest for possession.5 The penalty level depends on the weight of the marijuana. It does not matter whether the marijuana was hydroponically grown (higher THC6 content) or was a garden variety south-of-the-border skank weed. All leafy marijuana is weighed the same. Possession of marijuana falls within the following ranges of punishment depending on the weight:
1. Class B: 2 ounces or less;
2. Class A: 4 ounces or less but more than 2 ounces;
3. SJF: 5 pounds or less but more than 4 ounces;
4. 3rd Degree: 50 pounds or less but more than 5 pounds;
5. 2nd Degree: 2,000 pounds or less but more than 50 pounds; and
6. 1st Degree: more than 2,000 pounds.
TEX. HEALTH & SAFETY CODE Sec. 481.121.
One proviso to Class B possession requires the marijuana be a “usable” amount. In other words, enough marijuana to smoke for the purpose of getting high. Remarkably, this can be enough for just one puff. For example, in Parson v. State, 432 S.W.2d 89 (Tex. Crim. App. 1968), the Court of Criminal Appeals affirmed a conviction and 50-year punishment for Mr. Parson after he was arrested for possessing only 1.41 grams of marijuana.
B. Hash Oils, Edibles, and Waxes
THC is the psychoactive chemical in marijuana. Hash oil, which is made by exposing marijuana to a solvent and concentrating the THC, is a potent form of cannabis. Due to its concentration and lack of plant matter, hash oil finds itself in the same Penalty Group as ecstasy and PCP.
Hash oil can be smoked in a vaporizer. Vaporizers are the modern-day equivalent of the cigarette. Vaporizers can be as small as a pen and work to extract the water molecules from the marijuana leaf and turn those water molecules into a vapor. Vaporizers also turn the liquid hash oil into a vapor to be inhaled.
Marijuana users are transitioning from burning the marijuana leaf itself to vaporizing the leaf or vaporizing hash oil concentrate. Vaporizing the marijuana leaf extracts more THC than burning, and it’s safer than burning since the user avoids inhaling carcinogens. Further, vaporizing hash oil delivers a comparatively higher amount of THC to the user.
Edibles made with hash oil are also popular. Edibles eliminate the need to burn marijuana and inhale harsh or unpleasant smoke. They also eliminate the need for a vaporizer. Common edibles include brownies, cookies, and candies made with hash oil concentrate.
Finally, THC wax is the most powerful, and most expensive, form of cannabis on the market. People who consume wax use only a small amount, called a “dab.” Another name for THC wax is BHO (short for butane honey oil). Wax is 80% pure THC and can be smoked in a bong or vaporizer.
People charged with possessing hash oil, edibles, or waxes may be charged with possession of a controlled substance in Penalty Group 2 (PCS PG 2).7 PCS PG2 falls within the following ranges of punishment, depending on the weight possessed:
1. SJF: less than 1 gram;
2. 3rd Degree: 1 gram or more but less than 4 grams;
3. 2nd Degree: 4 grams or more but less than 400 grams; and
4. 1st Degree: more than 400 grams.
Id.
By way of comparison, 1 pound is approximately 454 grams. The average weight of just one marijuana cookie is about 30 grams. Significantly, one pound of cookies is not that heavy and does not amount to much. However, I’ve had clients charged with PCS PG2 facing a 2nd-degree felony because of a single cookie or small edible. As ridiculous as it sounds, one 30-gram cookie is equivalent, punishment range-wise, to possessing 50 to 2,000 pounds of leafy marijuana. Some might say the Legislature went too far when establishing the punishment ranges for marijuana edibles, oils, and waxes. The law almost encourages users to possess the leafy weed, rather than the edibles, oils, or waxes.
II. The Bail-Bondsman & Attorney
With more serious accusations come higher bail-bond amounts and higher attorney fees.
In most instances, a person arrested for possession would employ the services of a bail bondsman. Bondsman typically charge around 10% of the total bond as their fee. For example, if the person arrested was charged with possessing a 30-gram marijuana cookie (2nd-degree felony) and the bond was set at $20,000, the accused would pay the bondsman about $2,000 to bond out of jail. The bondsman would then act as a surety and would assure his client’s appearance in court.
Following the higher bond amounts come the higher attorney fees. It’s industry standard for attorneys to set their fees depending upon the punishment range of the crime. Additionally, complexity and the estimated workload for the attorney also factor into pricing. Representation on a state jail felony may begin at the bottom range of $3,500 for a pretrial disposition and an extra $3,500 for a trial fee. The fees only go up from there as the offenses become more serious. Considering how defense lawyers place their law license on the line each time they accept a case, when the stakes are higher the fee is higher, as well.
III. The Lesson
Accordingly, if vacation plans take you into the great state of Colorado to get a legal high and enjoy the sights, make sure the risks are well understood. Regardless of your feelings on legalizing marijuana in Texas, avoid being the next arrest statistic out of Dalhart or Amarillo. Texas still imposes extreme penalties for some of the more concentrated cannabis products on the market. And the corresponding bail-bondsman and attorney fees will take an extreme chunk from your pocketbook, too.
Notes
1. Sullum, J. (2016, February 16). Legal Marijuana Sales Totaled $1 Billion in Colorado Last Year. Retrieved December 5, 2018, from http://reason.com/blog/2016/02/16/legal-marijuana-sales-totaled-1-billion.
2. TEX. HEALTH & SAFETY CODE Sec. 481.125.
3. TEX. HEALTH & SAFETY CODE Sec. 481.120 & 481.113.
4. TEX. HEALTH & SAFETY CODE Sec. 481.134.
5. TEX. HEALTH & SAFETY CODE Sec. 481.121.
6. Tetrahydrocannabinol.
7. TEX. HEALTH & SAFETY CODE Sec. 481.116.
