Possession of Marijuana in Texas | Houston Marijuana Possession Attorney

Recreational marijuana is still illegal in Texas, and possession is charged by weight — from a Class B misdemeanor up to a felony. But since Texas legalized hemp in 2019, these cases have become much harder for the State to prove, because legal hemp and illegal marijuana look and smell exactly alike. That change has created real leverage for the defense.

If you or a loved one has been charged with marijuana possession in Houston, Harris County, or Galveston, Brian Foley and Luis Baez — former prosecutors and drug-defense attorneys — can help.

What the Law Covers

Under Texas Health and Safety Code § 481.121, it is an offense to knowingly or intentionally possess a usable quantity of marijuana. "Marihuana" is defined by the statute and, since 2019, excludes hemp — cannabis containing 0.3% or less delta-9 THC. To convict, the State must prove you knowingly possessed the substance and that it was legally marijuana, not hemp.

Penalty Range

Amount	Offense Level	Punishment
2 ounces or less	Class B Misdemeanor	Up to 180 days jail; up to $2,000 fine
More than 2 to 4 ounces	Class A Misdemeanor	Up to 1 year jail; up to $4,000 fine
4 ounces to 5 pounds	State Jail Felony	180 days – 2 years state jail; up to $10,000 fine
5 to 50 pounds	Third-Degree Felony	2 – 10 years prison; up to $10,000 fine
50 to 2,000 pounds	Second-Degree Felony	2 – 20 years prison; up to $10,000 fine
More than 2,000 pounds	Enhanced First-Degree Felony	5 – 99 years or life; up to $50,000 fine

Careful: edibles and vape oil are not "marijuana"

THC concentrate — wax, dabs, vape oil, and edibles — is prosecuted as Penalty Group 2, a felony at any weight, not as marijuana. A case that feels minor can actually be a felony concentrate case, so the exact substance you are charged with matters enormously.

How These Cases Are Defended

The hemp/THC problem. Because odor and appearance no longer distinguish legal hemp from illegal marijuana, the State often needs a quantitative lab test showing more than 0.3% delta-9 THC. When that testing is missing or unreliable, cases are dismissed or reduced.
Illegal search and seizure. Courts continue to grapple with whether the "smell of marijuana" still justifies a search now that hemp is legal. An unlawful stop or search can lead to suppression.
Knowing possession and affirmative links. Marijuana found in a shared car or home is not automatically yours; the State must prove you knew and controlled it.
Diversion and "cite and release." Many Harris County–area cases qualify for programs that end in dismissal for first-time offenders.
Dismissal, expunction, and nondisclosure. A dismissed or acquitted case can be expunged; some resolved cases qualify for nondisclosure.

Collateral Consequences

Even a Class B marijuana conviction can cost you a driver's license suspension in some cases, financial aid, housing, and job opportunities, and it can create immigration consequences. Keeping a marijuana charge off your record is almost always achievable with the right defense.

Related Charges

Why HCDA

Brian Foley is Board Certified in Criminal Law, and both he and Luis Baez are former prosecutors who understand exactly how the hemp law has reshaped these cases. If you or a loved one has been charged with marijuana possession in Houston, Harris County, or Galveston, contact Houston Criminal Defense Attorneys PLLC for a free, confidential consultation. Call or text (713) 703-1718.

Frequently Asked Questions

Is marijuana still illegal in Texas?

Yes. Recreational marijuana remains illegal in Texas. However, the 2019 law legalizing hemp (cannabis with 0.3% or less THC) created a real problem for prosecutors: to convict, the State often must prove the substance contained more than 0.3% delta-9 THC, which requires quantitative lab testing that many jurisdictions do not routinely perform on misdemeanor amounts.

What is the punishment for marijuana possession in Texas?

By weight: two ounces or less is a Class B misdemeanor (up to 180 days jail, up to $2,000 fine); two to four ounces is a Class A misdemeanor; four ounces to five pounds is a state jail felony; five to 50 pounds is a third-degree felony; 50 to 2,000 pounds is a second-degree felony; and more than 2,000 pounds is punishable by 5 to 99 years or life and a fine up to $50,000.

How has the hemp law helped marijuana cases?

Since hemp became legal, marijuana and legal hemp look and smell identical, so the odor or appearance of 'marijuana' no longer proves a crime by itself. The State frequently needs a lab result showing more than 0.3% delta-9 THC. That testing gap has led to many dismissals and reductions, especially in misdemeanor cases.

Can a marijuana charge be dismissed or kept off my record?

Often, yes. Many counties offer diversion or 'cite and release' programs for small amounts, and the hemp testing issue leads to dismissals. If a case is dismissed or you are acquitted, you may be eligible for an expunction; some resolved cases qualify for nondisclosure.

Are THC edibles and vape pens treated as marijuana?

No — and this is critical. THC concentrate and edibles are charged as Penalty Group 2, which is a felony at any amount, not as marijuana. What looks like a minor 'weed' case can actually be a felony concentrate case, which is why the exact substance matters so much.