Legal Status of Marijuana Under Review by Texas Legislature

The legal status of marijuana has gone through major changes in recent years. California passed a law permitting medical marijuana use nearly 20 years ago, followed by several other states. In the past two years, however, a number of states have either decriminalized marijuana or outright legalized it for both medical and recreational use. A bill to repeal criminal marijuana statutes is currently pending in the Texas House of Representatives, although its future is uncertain. Regardless of what state legislatures do, marijuana remains a Schedule I controlled substance, the highest level of restriction under federal law. A federal judge in California, however, is currently considering an argument that marijuana’s Schedule I designation is unconstitutional.

Marijuana is currently a controlled substance under both Texas and federal law. Texas prohibits the delivery of marijuana, with the level of offense ranging from a Class B misdemeanor for one-fourth of an ounce or less with no intent to sell, to a first-degree felony punishable by life imprisonment for more than 2,000 pounds. Tex. Health & Safety Code § 481.120. Possession of marijuana is a Class B misdemeanor for two ounces or less, increasing to life imprisonment for amounts over 2,000 pounds. Tex. Health & Safety Code § 481.121.

Federal law defines a Schedule I controlled substance as one with a “high potential for abuse,” “no currently accepted medical use in treatment in the United States,” and a “lack of accepted safety” for use. 21 U.S.C. § 812(b)(1). Marijuana is listed as a Schedule I controlled substance, while heroin, cocaine, and methamphetamine, to name but a few, are Schedule II drugs. Penalties for marijuana distribution may include five to 40 years in prison for 100 kilograms or more, or 100 marijuana plants, 21 U.S.C. § 841(b)(1)(B)(vii); or ten years to life for one thousand kilograms or plants, 21 U.S.C. § 841(b)(1)(A)(vii). Distribution of smaller amounts carries lesser penalties. 21 U.S.C. §§ 841(b)(1)(D), 844.

Texas State Representative David Simpson (R-Longview) introduced HB 2165 on March 2, 2015. The bill would repeal the provisions of the Texas Health and Safety Code and the Code of Criminal Procedure prohibiting possession and distribution of marijuana. It would also remove references to marijuana offenses in the Education, Government, Health and Safety, Human Resources, Insurance, Penal, and Tax Codes. According to a report by the Legislative Budget Board, the bill could reduce the burden on jails, community supervision, and parole by 2,800 to 3,500 people per year. Since April 8, 2015, however, the bill has been “left pending in committee,” meaning that it is awaiting a vote that may never occur.

A group of defendants charged with conspiracy to manufacture 1,000 or more marijuana plants, 21 U.S.C. § 846, are challenging the constitutionality of the Schedule I designation. United States v. Pickard, et al, No. 2:11-cr-00449, motion to dismiss indictment (E.D. Cal., Nov. 20, 2013). The court heard testimony in October 2014 from various experts regarding medical uses of marijuana. The defendants claim, in part, that the Schedule I designation is arbitrary and unfounded, and that it therefore violates the Equal Protection Clause of the Fifth Amendment. This argument is considerably different from the one presented in the Supreme Court’s decision affirming Congress’ power under the Commerce Clause to prohibit marijuana, Gonzalez v. Raich, 545 U.S. 1 (2005).

These blog posts are meant to be illustrative only. Unless expressly stated to the contrary herein, these matters are not the result of any legal work of Michael J. Brown, but are used to communicate a particular point of view. Michael J. Brown does not claim credit for any legal work done by any lawyer or law firm either generally or specifically, with respect to the matters contained in this blog.

Michael J. Brown, a board-certified criminal defense lawyer, has represented defendants in west Texas for over 20 years. Contact us today online or at (432) 687-5157 to schedule a confidential consultation with a member of our team.

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