Let me start off with the obvious: if you have been arrested for possession of marijuana, you need a lawyer. Preferably one who handles drug charges on a regular basis.


While the 2015 legislative session saw changes in the law addressing synthetic marijuana, and an overly complex, and incredibly narrow “medicinal use of THC for epilepsy” law pass, issues related to “possession of marijuana” as a criminal offense did not change. As this is, by far, the most frequent drug offense people are arrested for in Denton, it is important to know the basics regarding possession of marijuana.


So, what do you need to know?


People Are Arrested for Marijuana All the Time


I guess the first thing to realize is that people are arrested with shocking frequency in Texas for possession of marijuana. Meaning, you are not going to talk the cop out of arresting you for the gram of pot he finds in your pocket. Texas is usually in the top one or two states for annual number of people arrested for possession of marijuana.


And, the mere fact that you were arrested for possession of marijuana does not mean the charge will be dismissed or dropped. Quite the opposite, it turns out. In fact, 97% of marijuana convictions (meaning, the person is convicted of/found guilty of and punished for) in Texas are for possession of marijuana, versus manufacture/delivery of marijuana, or making marijuana available to a child. See: Simon Thompson, “97% of Marijuana Convictions are for Possession,” KRWG/NPR, Published August 19, 2015. Again, this is why you need a lawyer for a possession of marijuana charge.


The Fact That Marijuana Is Legal Elsewhere Means Nothing In Texas


The fact that you bought the marijuana in Colorado and were just passing through Texas means absolutely nothing towards your marijuana charge in Texas. Nor does the fact that virtually every other state has less severe penalties (or no penalty) for possession of marijuana.


Any Useable Amount of Marijuana is Illegal In Texas


Contrary to what I have seen posted on some blogs, any useable amount of marijuana is illegal to possess under Texas law. Period. But, note the qualifying term there: “useable.” If a person possesses an amount of marijuana that is not useable, the person cannot be convicted of possession of marijuana.


So, we know that in order to be charged with possession of marijuana, a person must be in possession of a “usable quantity.” I have written previously on what Texas determines a “usable quantity” to be (see: https://georgeroland.com/uncategorized/weighing-the-pot-what-usable-quantity-means-under-texas-law). I would recommend you read my blog on “usable quantities” as it is a contentious topic and frequent defense to possession charges so as to warrant an entirely separate discussion.


Suffice it to say, if it’s enough to smoke and get you even a little bit high, it’s a “useable quantity” in Texas. A dusting, trace amount, or other infinitesimal quantity is not a useable amount under Texas case law. There is, however, not set quantity or amount of marijuana that is, per se, “useable.”


What Is NOT Marijuana


“Marijuana” in a usable amount is illegal to possess in Texas. So, that begs the question: what is “marijuana” under Texas law? To answer this, we have to turn the question around, and ask the converse: what is not marijuana under Texas law?


For the most part, you might assume anything that looks, smells, and otherwise seems to be marijuana is, in fact, marijuana. However, Texas law specifically excludes some parts of the cannabis sativa L. plant (whether growing or in loose/bud form) from the legal definition of “marihuana” (the Health and Safety code spells marijuana with an “h.”) Marijuana does not include the following: the resin extracted from the plant; the stalks (aka, “stems”); oil or cake made from the seeds or stalks of the plant; and sterilized seeds that are incapable of germination (aka, the “male” seeds.) So, these items must be excluded from the weight of any substance alleged to be marijuana, as they are, by definition, not marijuana.


Authority Not to Arrest


As I have written on before, Texas cops have had the authority to not arrest a person for possession of less than four ounces of pot (one-quarter of a pound, aka, a QP) if the person is found to be in possession in the county of the person’s residence for about eight years now. Instead, the officer gives the person a summons to appear before a judge within forty-eight hours to be magistrated. From there, the case would proceed as normal—court dates, etc. But, it saves the time and expense of police arresting, housing, feeding, clothing, and guarding an inmate. And it saves the accused person the cost of bail money. Everyone wins.


Of course, this never happens in Denton County, so do not count on this. The police (especially UNT PD who seem to love arrests for what are likely “infinitesimal” amounts of marijuana) will arrest you if you have any useable quantity of marijuana in your possession, regardless of where you are when they encounter you.


If you have been arrested for possession of marijuana, you need to call a lawyer. Hoping the charge will not be filed, or will be dropped is a nice thing to wish for, but is (unfortunately) not reality.