Is marijuana still illegal in Texas?

Yes. Possessing two ounces or less of marijuana is a Class B misdemeanor in Texas, and Montgomery County still actively arrests and prosecutes these cases. Neighboring Harris County generally does not accept misdemeanor marijuana charges, which is why the same conduct can be handled very differently just across the county line.

Can you go to jail for possession of marijuana in Montgomery County?

A Class B misdemeanor carries up to 180 days in county jail and a fine of up to $2,000. In practice, first-time offenders with no criminal history can often avoid jail entirely — through a dismissal, a diversion program, or probation — and many cases can be resolved in a way that leads to an expunction.

Will I lose my driver's license for a marijuana charge?

Possibly. Under Texas Transportation Code §521.372, a final conviction for a drug offense — including possession of marijuana — triggers an automatic 180-day driver's license suspension. Avoiding a conviction, or obtaining an occupational license, is part of how we protect your ability to drive.

Are THC vape pens treated the same as marijuana?

No. THC concentrates and vape cartridges are charged under Penalty Group 2 of the Health & Safety Code, which is a felony — far more serious than misdemeanor marijuana. If your case involves a vape pen, wax, or edibles, see our Possession of THC (Penalty Group 2) page.

Can a marijuana possession charge be expunged?

If your case is dismissed or you are found not guilty, you can pursue an expunction that erases the record. Deferred adjudication on a Class B or higher marijuana charge can never be expunged — only non-disclosed — which is why how the case is resolved matters as much as whether it is dismissed.

Possession of Marijuana/Marihuana | Conroe Marijuana Lawyer Attorney

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Brian Foley is a marijuana lawyer and criminal defense lawyer in Conroe, Texas who represents people accused of possession of marijuana in Conroe, Houston, and the Woodlands along with the surrounding counties. Brian is a Board Certified criminal defense attorney and former chief prosecutor who has handled thousands of drug charges. Now he represents individuals who have been charged with a crime and need their rights protected.

Is Marijuana Legal in Texas?

In general, marijuana is still illegal in Texas. In Montgomery County, officers are still making arrests for less than two ounces of marihuana. In Harris County the District Attorney does not accept marihuana charges that are filed as a misdemeanor. This means that if you have less than 4 ounces of marihuana you are not likely to be charged if caught by the police in Harris County — but you very well may be in Montgomery County.

There are some limited exceptions where marihuana is legal to possess in Texas. Under the Compassionate Use Program, a doctor may prescribe low-THC medical marihuana if the patient has any of the following diagnoses:

Epilepsy
A seizure disorder
Multiple sclerosis
Spasticity
Amyotrophic lateral sclerosis
Autism; or
A terminal cancer; or
An incurable neurodegenerative disease

What if I Have a Medical Prescription from Another State?

Texas law trumps the laws of other states, including medical prescriptions obtained in places like California or elsewhere. Changes to the federal laws could preempt Texas laws, but as of March of 2021 there is no national medical marijuana law requiring states to accept the prescriptions of doctors in other states.

What About Industrial Hemp?

This topic was discussed in Brian Foley's blog post "Is Marihuana Legal Now in Texas?"

The Texas legislature muddied the waters on marijuana law by legalizing the possession of cannabis plants with a Delta-9 THC content of 0.3% or less — what the law calls industrial hemp. The confusion comes from the fact that marijuana and industrial hemp share the same scientific name: Cannabis sativa L. When the legislature carved out an exception for hemp, it inadvertently increased the burden of proof on prosecutors across the State. It used to be enough for an officer or a lab analyst to look at a substance and identify it as marijuana on sight. Now forensic testing must confirm a Delta-9 THC concentration greater than 0.3% on a dry-weight basis. That makes proving a marijuana case more difficult and expensive for the State — and your case may have a more favorable result because of the time and cost required to prove guilt when it is challenged by a competent defense attorney.

What Is the Punishment for Possession of Marijuana?

The level of a marijuana charge in Texas is set by the weight of what was possessed under Health & Safety Code §481.121:

Texas marijuana possession punishment ranges under Health & Safety Code §481.121. A prior record and certain circumstances can increase these levels.
Weight	Offense Level	Punishment Range	Probation
2 oz or less	Class B Misdemeanor	0–180 days county jail and up to a $2,000 fine	Up to 2 years
2 – 4 oz	Class A Misdemeanor	0–365 days county jail and up to a $4,000 fine	Up to 2 years
4 oz – 5 lbs	State Jail Felony	180 days – 2 years state jail and up to a $10,000 fine	Up to 5 years
5 – 50 lbs	3rd Degree Felony	2 – 10 years prison and up to a $10,000 fine	Up to 10 years
50 – 2,000 lbs	2nd Degree Felony	2 – 20 years prison	Up to 10 years
More than 2,000 lbs	1st Degree Felony	5 – 99 years or life in prison and up to a $50,000 fine	Up to 10 years

Most cases we see are simple possession of two ounces or less — a Class B misdemeanor. For a first offender with no criminal history, probation, a diversion program, or an outright dismissal are realistic goals, and the case can often be resolved in a way that leads to an expunction.

Don't Forget the Driver's License Suspension

Many people are surprised to learn that a marijuana conviction also threatens their license. Under Texas Transportation Code §521.372, a person's driver's license is automatically suspended for 180 days upon a final conviction of an offense under the Controlled Substances Act — and possession of marijuana qualifies. Keeping the charge off your record (or securing an occupational driver's license) is part of protecting your ability to get to work, school, and church. We cover this in detail in our post on driver's license suspensions in marijuana cases.

THC Vape Pens Are Charged Differently

If your case involves a THC vape pen, wax, oil, gummies, or another concentrate — not the plant itself — it is not a misdemeanor marijuana case. Concentrated THC is prosecuted as a felony under Possession of a Controlled Substance, Penalty Group 2, even for Delta-8 or Delta-10 products bought at a store. See our page on whether THC vape pens are legal in Texas if that describes your situation.

How We Win Marijuana Cases

Most marijuana arrests start with a traffic stop, so the defense usually starts there too:

Reasonable suspicion for the stop. If the officer did not have specific, articulable facts to justify pulling you over, the evidence found afterward can be suppressed and the case dismissed.
Probable cause for the search. Officers often rely on the "odor of marijuana." But because legal hemp smells identical to illegal marijuana, that justification is increasingly open to challenge.
Affirmative links. The State must connect you to the substance — not just to the car you were in. Shared vehicles and shared spaces create reasonable doubt.
Mitigation for a dismissal. Even when the evidence is strong, character letters, classes, and community service can persuade a prosecutor to dismiss the case so it can be expunged from your record.

Serving Houston, Conroe, and Surrounding Areas

If you or a loved one has been charged with possession of marijuana in Conroe, The Woodlands, Houston, or anywhere in Montgomery County, contact Brian Foley Law PLLC for a free, confidential consultation with a Board Certified criminal defense attorney and former Chief Prosecutor.

Possession of Marijuana