Article submitted by Chris Hesse, Attorney
112 SW 8th Ave #617, Amarillo, TX 79101
Criminal defense, DUI and DWI, Federal crime, Appeals, Civil rights
Colorado is now widely considered the center of what is being called “cannabis tourism.” When Colorado made legal the recreational use of marijuana in 2014, tourists have been going there to get their legal high and take in the sights. The legal sale of marijuana in Colorado in the year 2015 has topped $ 1 billion dollars, making the industry a close second to the sale of craft beer. $ 135 million in taxes and fees were generated for the State. Please see here.
Many Texans are driving back home with their purchases of Colorado cannabis and do not realize the amount of risk they are taking when it comes to Texas state law. A vast majority of these Texans are driving back from Colorado through Dalhart and Amarillo. The amount of drug busts in these two areas have greatly increased since “cannabis tourism” took off in Colorado starting in 2014. The busts don’t always involve large quantities that are intended for resale, but most of the time involves a quantity intended for personal use.
It is important to know the varying penalty levels for the type of cannabis that is being possessed before anyone decides to place themselves at risk of being arrested and prosecuted.
- The Types of Cannabis and the Penalty Levels:
There are three levels of misdemeanors and four levels of felonies in Texas (Please see Texas Penal Code Sec. 12.11, 12.22, 12.23, 12.35, 12.34, 12.33, & 12.32):
- Class “C” crimes are fine-only offenses.
- Class “B” crimes are crimes whereby the accused could face up to 180 days in jail or 6 months to 2 years of probation.
- Class “A” crimes are crimes whereby the accused could face up to one year in jail or 6 months to 2 years of probation.
- State Jail Felonies (SJF) are crimes whereby the accused could face anywhere from 180 days to 2 years in a State Jail Facility or anywhere from 2 to 5 years of probation.
- 3rd Degree Felonies are crimes whereby the accused could face anywhere from 2 to 10 years in a penitentiary or from 2 to 10 years of probation.
- 2nd Degree Felonies are crimes whereby the accused could face anywhere from 2 to 20 years in the penitentiary or from 2 to 10 years of probation.
- 1st Degree Felonies are crimes whereby the accused could face anywhere from 5 to 99 years or life in the penitentiary or from 2 to 10 years of probation.
Cannabis possession in Texas can range anywhere from a Class “B” misdemeanor up to a 1st Degree Felony. There is no such thing as Class “C” cannabis possession (although an officer could give a Class “C” Citation for Possession of Drug Paraphernalia. Please see Texas Health and Safety Code Sec. 481.125). Class “B” accusations and higher are offenses whereby the person can be placed into full custodial arrest and booked into jail. These people will have to bond out pending the court case.
This article will not focus on delivering marijuana or delivery of a controlled substance. Delivery falls within a different range than possession and involves different weights. Please see Texas Health and Safety Code Sec. 481.120 & 481.113. It is rare to be accused of delivery of marijuana or delivery of a controlled substance, and the vast majority of the cannabis charges I have seen involve possession, not delivery. To put it simply, “delivering” is shown if it is obvious that the cannabis is going to be resold (such as pre-packaged in small amounts to suggest intent to re-sell) or the person is literally caught in the act of hand delivering to another individual.
Also, please note that possessing marijuana or a controlled substance in a drug free zone creates its own set of special problems. Drug free zones are zones of protection that are drawn around public and private colleges and universities, schools, youth centers, playgrounds (1,000 feet) and public swimming pools and video arcades (300 feet). Please see Texas Health and Safety Code Sec. 481.134. Generally speaking, the crime is bumped up to the next level crime. For instance a Class “B” possession amount will be charged as a Class “A” because the 2 ounces or less of marijuana was found in a drug free zone. I most commonly see drug free zone enhancements charged within 1,000 feet of playgrounds and schools (school property, to be exact) and almost never on a freeway stop, although it is still very possible to be driving within 1,000 feet of a school while on the freeway. For instance, Saint Andrew’s Episcopal School is located on Georgia and the school property butts right up against the westbound feeder road. The distance from this school property to the eastbound lanes of I-40 is a mere 175 feet, well within the 1,000 foot range.
Drug free zones can also bump up the minimum range of punishment when it comes to the felony accusation. Drug free zones can also affect parole eligibility. For purposes of this article, we will focus on an accusation of possessing cannabis without a delivery or drug free zone allegation.
- Leafy Marijuana:
Possession of leafy marijuana subjects a person to arrest for Possession of Marijuana. Please see Texas Health and Safety Code Sec. 481.121. The penalty level depends on the weight of the leafy marijuana. It does not matter whether the leafy marijuana is hydroponically grown (higher THC content marijuana) or your garden variety “Mexican Skank-Weed”. All leafy marijuana is weighed the same.
Possession of Marijuana falls within the following range of punishment depending on the weight possessed.
- Class “B”: 2 ounces or less.
- Class “A”: 4 ounces or less but more than 2 ounces.
- SJF: 5 pounds or less but more than 4 ounces.
- 3rd Degree: 50 pounds or less but more than 5 pounds.
- 2nd Degree: 2,000 pounds or less but more than 50 pounds.
- 1st Degree: more than 2,000 pounds. Id.
It is important to note that a person can be charged with Class “B” possession of leafy marijuana under 2 ounces as long as the leaf that person has is “usable.” The general idea is that a “usable amount” is the amount of marijuana a person needs to consume for the sole purpose of “getting high.” This can amount to just one puff. There have been convictions involving unimaginably small amounts of marijuana. For example, in Parson v. State, 193 S.W.3d (Tex. App.—Texarkana 2006), the Court of Appeals upheld a case where a person was arrested and convicted of possessing a usable amount of marijuana and the amount was 1.41 grams.
- Hash Oils, Edibles, and Waxes:
THC is the active chemical and principal hallucinogen in marijuana. Hash oil — which is made by exposing marijuana to a solvent — is a potent and concentrated carrier of THC. Hash oil, due to its concentration and lack of plant matter, is in the same penalty group as ecstasy and amphetamines.
Hash oil can be smoked in a vaporizer. Vaporizers are the modern day equivalent of the cigarette. Vaporizers can be as small as a pen and work to extract the water molecules from the marijuana leaf and turn those water molecules into a vapor. Vaporizers also turn the liquid hash oil into a vapor to be inhaled.
Marijuana users are quickly transitioning from burning the marijuana leaf, to vaporizing the leaf or vaporizing the hash oil. It is important to note that vaporizing the leaf extracts more THC than burning the leaf. Additionally, vaporizing is safer than burning the leaf because the user is not inhaling carcinogens. Vaporizing hash oil delivers an incredible amount of THC to the user compared to vaporizing the leaf or burning the leaf.
Edibles made with hash oil are also popular among THC users because they minimize the need to burn marijuana and inhale harsh or unpleasant smoke or even use a vaporizer. Common edibles include brownies, cookies, and candies made with hash oil.
Wax is the most powerful form of marijuana on the market. People who use marijuana wax use a small amount, or a dab, to work. Another name for marijuana wax is BHO, which is short for butane honey oil. Making wax is a dangerous process. Wax can be smoked in a bong or vaporizer. It is 80% pure THC. It is also the most expensive form of marijuana on the market.
People charged with possessing hash oil, edibles, or waxes are charged with Possession of a Controlled Substance in Penalty Group 2 (PCS PG 2. See Texas Health and Safety Code Sec. 481.116.) PCS PG2 falls within the following range of punishment depending on the weight possessed:
- SJF: Less than 1 gram.
- 3rd Degree: 1 gram or more but less than 4 grams.
- 2nd Degree: 4 grams or more but less than 400 grams.
- 1st Degree: more than 400 grams. Id. (By way of comparison, 1 pound is approximately 454 grams)
The average weight of just one marijuana cookie is 30 grams. One pound of cookies is really not that heavy and does not amount to much. I’ve had many clients charged with PCS PG2 and facing a 2nd Degree Felony because of just one cookie or a small edible.
Possessing a single 30 gram marijuana cookie subjects the person possessing the single cookie to a hefty 2nd Degree Felony accusation. As ridiculous as it sounds, one 30 gram cookie is equivalent, punishment range wise, to possessing anywhere from 50 to 2,000 pounds of leafy weed. Some might say that the legislature went too far when setting up the punishment ranges for marijuana edibles, oils, and waxes. It almost encourages marijuana users to possess leafy weed rather than the edibles, oils, and waxes.
- The Bail-Bondsman & The Attorney:
With the higher accusations come the higher bail bond amounts and higher attorney fees.
Bonds across the State of Texas generally fall within the following ranges depending on the penalty range:
- Class “B”: $ 500 to $ 1,500
- Class “A”: $ 1,000 to $ 3,000
- SJF: $ 3,500 to $ 8,000
- 3rd Degree: $ 10,000 to $ 20,000
- 2nd Degree: $ 15,000 to $ 40,000
- 1st Degree: $ 40,000 and above.
In most instances a person accused of possession will seek the services of a bail bondsman who would charge 10% of the total bond as the bondsman’s fee. So for example if the person is charged with possessing a 30 gram marijuana cookie in the 2nd Degree Felony range, and the bond was set at $ 20,000, the person would need to come up with $ 2,000 to bond out. The bail bondsman then acts as a surety and vouches for that person that that person will show up to court.
In addition to the higher bond amounts come the higher attorney fees. It is industry standard for attorneys to charge a certain amount of money depending mostly on the punishment range level of the crime. Complexity of the crime and estimated amount of work the attorney may have to do also is a factor in the pricing. But basically, representation on a SJF accusation starts out in Texas at the bottom range of $ 3,500 for a pre-trial fee and $ 3,500 for a trial fee. The fees only go up from there when the punishment range goes up. Attorneys put their law license on the line every time they represent someone, and when the stakes are higher, the fee is higher.
III. The Lesson
No matter what your feelings on whether marijuana should be made legal in Texas or not, be aware of the extreme penalty ranges for some of the cannabis products and the corresponding bail-bondsman and attorney fees.