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 |
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.
The Harris County Misdemeanor Marijuana Diversion Program
Harris County treats small marijuana cases differently from most of Texas. Since March 2017 the Harris County District Attorney's Office has operated the Misdemeanor Marijuana Diversion Program (MMDP). If an officer finds four ounces or less of marijuana and no other charge, the person is generally not arrested. Instead they are given paperwork and 90 days to complete a four-hour cognitive decision-making class. Complete the class, and no charge is ever filed — there is no arrest record, no court date, and nothing to expunge.
Not everyone qualifies. You will generally be arrested and charged in the traditional way if you were on bond or probation at the time, if the possession was in a drug-free zone, if you also face another charge (a DWI, a weapon, an outstanding warrant), or if the substance turns out to be THC concentrate rather than plant marijuana. If you were offered the program, complete the class before the deadline — missing it results in a filed Class B charge. If you were not offered the program and believe you qualified, we can raise that with the prosecutor at the first setting.
What Happens After a Marijuana Arrest in Harris County
- Arrest or citationIf you were not diverted, you were either given a citation to appear (cite-and-release) or booked at the Harris County Joint Processing Center at 700 N. San Jacinto and released on a general order bond or personal bond, usually within a day.
- First court settingTwo to four weeks later in one of the sixteen County Criminal Courts at Law at 1201 Franklin. Nothing about guilt is decided; the case is reset for the State to produce the offense report, body-camera video, and — critically — any lab report.
- The lab questionBecause hemp is legal, the State must prove the substance was marijuana with more than 0.3% delta-9 THC. Harris County's lab (the Houston Forensic Science Center or the Harris County Institute of Forensic Sciences) can perform quantitative THC testing, but misdemeanor cases often sit for months without it. No lab result usually means no provable case.
- ResolutionDismissal for lack of lab evidence or an illegal search, a pretrial intervention program that ends in dismissal, a reduction to Class C possession of drug paraphernalia, deferred adjudication, or trial. Our goal is a result you can expunge.
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.
The Smell of Marijuana and Vehicle Searches
For decades Houston-area officers searched cars on the strength of a single sentence: "I detected the odor of marijuana." Since hemp became legal, that sentence is no longer self-evidently probable cause, because legal hemp flower, legal hemp pre-rolls, and illegal marijuana smell identical. Texas courts have not uniformly rejected odor-based searches, but the argument is live, and it matters far beyond the marijuana charge: the search justified by the odor is often what produced the gun, the pills, or the concentrate that became the real case. We file motions to suppress in these cases and litigate them.
Related and Enhanced Charges
Possession of drug paraphernalia (Health and Safety Code 481.125) is a Class C misdemeanor — a fine-only offense — and a common landing spot when a possession case is reduced. Drug-free zone allegations under 481.134 raise the level of the offense by one step. Possession with intent to deliver marijuana (481.120) is charged when the quantity, packaging, scales, or cash suggest sales, and starts at a Class B for a quarter-ounce or less given away but rises quickly to a felony. DWI on marijuana is a separate offense that requires proof of impairment, not merely THC in the blood. And THC concentrate — vape cartridges, wax, edibles — is Penalty Group 2, a state jail felony for less than one gram and rising with weight.
Collateral Consequences
A marijuana conviction — even a Class B — carries a mandatory 180-day driver's license suspension and drug-education class under Transportation Code 521.372; can suspend federal student aid eligibility; disqualifies applicants for many jobs, apprenticeships, and professional licenses that ask about drug convictions; can lead to eviction from public or subsidized housing; and, for non-citizens, a single conviction for possession of more than 30 grams (about one ounce) is a deportable offense, and any drug conviction can bar admission or adjustment of status. For students, a conviction may also trigger school-district or university disciplinary proceedings. Deferred adjudication avoids some of these consequences; a dismissal followed by expunction avoids all of them.
Keeping the Charge Off Your Record
If the case is dismissed — for lack of a lab report, a suppressed search, a completed pretrial intervention program, or otherwise — you are eligible for an expunction after the statute of limitations (two years for a misdemeanor) or immediately if the prosecutor agrees the case will not be refiled. An expunction destroys the arrest record, and you may lawfully deny the arrest ever occurred. If the case ends in deferred adjudication, you can petition for an order of nondisclosure after discharge, which seals the record from private employers and background-check companies. A conviction cannot be sealed for a marijuana offense until two years after the sentence is complete, and only if it is a first offense.
Related Charges
- Penalty Group 2 (THC concentrate, edibles, vape oil)
- Penalty Group 2-A (synthetic cannabinoids)
- Possession With Intent to Deliver
- Manufacture or Delivery of a Controlled Substance
- DWI on Marijuana
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.