Proposed Texas Bill Would Have Decriminalized, but not Legalized, Minor Marijuana Possession

Texas continues to impose strict prohibitions on marijuana possession, even as other states substantially reduce criminal penalties or even legalize recreational use altogether. A bill introduced in the Texas Legislature this year, HB 81, would have eliminated criminal penalties for possession of small amounts of marijuana. This should not be confused with legalization, however. The bill would have replaced the criminal penalty with a civil penalty. A person would have to pay a fine but would not face jail time or gain a criminal record. As the 2017 legislative session draws to a close, the bill’s prospects do not look good. Still, it often takes more than one session to gain enough support for certain bills, and this bill made it farther than many other bills addressing this issue. When the next session begins in 2019, a similar bill might have a better chance.

State law deals with marijuana separately from other controlled substances. The classification of the offense of possession of marijuana (POM) depends on the amount that a person “knowingly or intentionally possesses.” Tex. Health & Safety Code § 481.121. At a minimum, POM is a Class B misdemeanor. This occurs when someone possesses a “usable quantity” up to two ounces, and it can result in up to 180 days in jail and a fine of up to $2,000. Id., Tex. Pen. Code § 12.22. Possession of more than two ounces, but no more than four ounces, is a Class A misdemeanor, which has twice the maximum potential penalty as a Class B misdemeanor. Tex. Pen. Code § 12.21. POM becomes a felony under current law for amounts in excess of four ounces. The lowest-level felony in Texas, a state jail felony, could result in a maximum fine of $10,000 and 180 days to two years in jail. Id. at § 12.35.

HB 81 would have amended the statutory provisions dealing with the lowest-level POM offense. Possession of one ounce of marijuana or less would no longer be subject to criminal penalties, while possession of more than one ounce, up to two ounces, would be a Class B misdemeanor. POM of one ounce or less would result in a civil penalty of $250 but no arrest or criminal conviction. A fourth or subsequent violation of this provision would be a Class C misdemeanor, which is punishable by a fine of up to $500 but does not include jail time. Id. at § 12.23.

The bill was first filed in November 2016, before the start of the legislative session. It was referred to the House Criminal Jurisprudence Committee in February. The committee held hearings and reported favorably on the bill in April. The last action regarding HB 81 was its placement on the General State Calendar on May 11, 2017. Even if it had passed the full House, its Senate counterpart, SB 170, never received a committee hearing. Considering how Texas lawmakers have generally viewed laws relating to marijuana, the fact that the bill passed through committee at all is a step in the right direction.

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 marijuana crime attorney in West Texas, has defended people’s rights against alleged state and federal charges for more than two decades. Contact us online or at (432) 687-5157 today to schedule a confidential consultation with a knowledgeable and experienced advocate for criminal justice.

More Blog Posts:

Texas County Establishes Diversion Program for All Misdemeanor Marijuana Offenses, Texas Criminal Lawyer Blog, May 30, 2017

Federal Judge Rules on Homeowners’ Claim that Tea Leaves Did Not Provide Probable Cause for Drug Raid, Texas Criminal Lawyer Blog, May 25, 2017

Federal Law Enforcement, Courts Consider Legality of Ayahuasca and Related Products, Texas Criminal Lawyer Blog, May 25, 2017

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