A bill almost became a law in Texas, reducing the penalties for marijuana and THC possession – Texas House Bill 2593. That’s right, Texas came closer than it ever has to decriminalizing possession of less than one ounce of marijuana; the new law would have made posssession of less than 28 grams a class C Misdemeanor (and a crime for which you could not be arrested).
More importantly, in my opinion, it would have changed the law on possession of THC concentrate to mirror that of possession of the plant itself, and make possession of up to two ounces (56 grams) of THC concentrate a class B Misdemeanor (punishable by up to 6 months in jail and a $2,000 fine). Currently, possession of that amount of THC concentrate could get you up to 20 years in prison! SO WHAT HAPPPENED AND HOW DID WE GET HERE!?
As I more thoroughly explain below – basically, the law finally had enough support in the Texas legislature to pass in the Texas House of Representatives. The law then went to the Senate, and the changes to the penalties were agreed upon (shockingly), but the Senate version was modified by Lt Governor Dan Patrick and other Senate Republicans to add to the definition of a controlled Delta-8-Tetrahydrocannabinol (“Delta 8 THC”). For those that are unfamiliar, Delta 8 THC is a mild psychotropic extract of hemp or cannabis, that is currently legal for sale in Texas. When the bill went back to the House for final editing and conference, Texas house member Joe Moody struck the Delta-8 addition to the definition of a controlled substance. This infuriated Dan Patrick, who refused to let the measure get a final vote in the Senate before it went to the governors desk, and the leigslative session expired. Womp-womp-womp.
So for at least 2 more years, the laws relating to marijuana and THC possession remain the same. The only way something could change sooner would be a change in the Federal law.
History of TX Marijuana & THC concentrate (wax, dabs, shatter, etc) Laws
The Texas Controlled Substance Act was passed in 1989, and established what is the framework still used today for determining the legality of possessing certain plants, drugs, and controlled substances in Texas. This is codified in Section 481 of the Texas Health and Safety Code.
In Texas, possession of THC concentrates differently, baed on the erroneous conclusuion that the concentrated substance was more dangerous and addictive. Take a look at other controlled substances in the same penalty group as THC concentrate, and you will find substances like MDMA (3,4-Methylene-dioxy-methamphetamine). No one will dispute that THC is a lot different than molly, but both are treated the same under the Texas Health and Safety Code. Even if we disagree on the legality of marijuana and THC, I think all of us should agree that taking mdma.
Possession of Marijuana
Under the current version of the code, possession of Marijuana (called ‘Marihuana’ in the code) has the following potential punishments for possession of a ‘usable amount,’ of marijuana:
- 2 ounces or less: Class B Misdemeanor (Up to 6 months in jail, up to $2,000 fine).
- 4 ounces or less but more than 2 ounces: Class A misdemeanor (Up to 1-year in jail, up to $4,000 fine).
- 5 pounds or less but more than 4 ounces: State Jail Felony (6 months – 2 Yrs in state jail, and a fine up to $10,000)
- 50 pounds or less but more than 5 pounds: 3rd Degree Felony.
- 2,000 pounds or less but more than 50 pounds: 2nd Degree Felony.*
- More than 2,000 pounds: 5 to 99 years, or life, and a fine up to $50,000.
Possession of THC Concentrate
Unbelievably, they treat the concentrated form of cannabis much differently in Texas. Possession of any detectable amount of a substance that is made from Marijuana that has over 0.3% THC by weight is a FELONY in Texas!
Possession of THC Concentrate has the following criminal consequences in Texas:
- Less than one gram: State Jail Felony (6 months – 2 Yrs in state jail, and a fine up to $10,000)
- 1 to 4 grams: 3rd Degree Felony (2 – 10 Yrs in TDCJ, and a fine up to $10,000)
- 4 to 400 grams: 2nd Degree Felony (2 – 20 Yrs in TDCJ, and a fine up to $10,000)
- More than 400 grams: 1st Degree Felony (5 to 99 yrs or life in TDCJ, and a fine not to exceed $50,000)
HOW THE CHANGES IN TX CANNABIS LAW DIED IN THE 2021 LEGISLATIVE TERM
House Bill 2593 was introduced by House Speaker Pro Tem Joe Moody. It was sponsored by Senator Nathan Johnson. Again, it would have reduced the penalty for possession of less than 2oz of substances derived from cannabis (concentrates like oils, vapes, edibles, infused products, etc) from a felony (according to the amount, as shown in the table above) to a Class B Misdemeanor. As you can see from the table of Marijuana penalties above, this bill would make these concentrate containing substances to be treated how we currently treat Marijuana flower. It would cover vape cartridges, pens, tinctures, or infused lotions as well.
The bill passed in the Texas House, and moved to the Senate. As passed out of the House and Senate State Affairs Committee HB 2593 had strong support for being passed. However, Senate Republicans led by Lt. Governor Dan Patrick added an amendmet during the floor debate which would have added Delta-8 THC to Penalty Group 2 of the Texas Health and Safety Code, just like Delta-9 THC (effectively making what is now an unregulated market, summarily illegal to sell or possess the substance). Because there was different versions from both chambers, House Speaker Joe Moody decided took the Bill to a Conference Committee to resolve the discrepencies between the two versions.
Speaker Moody was successful in getting the problematic amendment removed during the Conference Committee – with the consequence of angering Senate Republicans and Dan Patrick, who felt they had compromised to pass a Marijuana law reform bill they had resisted passing for so many years. So the conference report was approved by the House, but in retaliation for striking the Delta-8 language from the Senate version of the Bill, Lt. Governor Dan Patrick chose inaction, refusing to recognize the bill’s sponsor, Sen. Nathan Johnson. Due to the HB 2593 being unable to present the Conference Committee Report before the expiration of the legislative term, the bill died.
Yes, Lt. Governor Dan Patrick is a bastard for doing this – but did Speaker Moody not also get a little too greedy? Progress is slow, had he accepted the compromise relating to Delta-8 THC, then Delta 9 would not be a Felony for another 2 years! So listen, we made progress on reforming Marijuana laws this session, but I think we missed an opportunity by lacking the finesse to get the important legislation passed.
ARRESTED FOR POSSESSION OF MARIJUANA or MARIJUANA CONCENTRATE (THC)?
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Houston Drug Attorney Tristan LeGrande
Tristan LeGrande – LeGrande Law
(Possession of a Controlled Substance in Penalty Group 2, PCS PG2)