Possession of Marijuana (POM)

The Law

A person commits an offense of possession of marijuana if a person knowingly or intelligently possesses a usable quantity of marijuana. Possession of marijuana is different than possession of THC concentrate (e.g., THC oil, wax, shatter, amber, honeycomb, budder, dabs, etc.); see Possession of THC Concentrate for more information.

Punishment

A common misunderstanding is that an individual caught in possession of a small amount of marijuana receives a charge as severe as a speeding ticket, but this is not true. Legislation, enacted in September, 2007, gives an officer the option to “cite and release” instead of arresting for possession of marijuana; additionally, the individual must live in the county where the offense is committed and the amount of marijuana cannot be over 4 ounces. While an individual might be cited and released which seems like only a ticket being issued, the punishment for this citation is still more severe than a common speeding ticket. The punishment for possession of marijuana is determined by the quantity:

• 2 ounces or less = Class B Misdemeanor
• 4 ounces or less but more than 2 ounces = Class A Misdemeanor
• 5 pounds or less but more than 4 ounces = State Jail Felony
• 50 pounds or less but more than 5 pounds = 3^rd Degree Felony
• 2000 pounds or less but more than 50 pounds = 2^nd Degree Felony
• More than 2000 pounds = 1st Degree Felony

Additionally, upon final conviction of drug offenses, a person’s driver’s license is automatically suspended for 180 days by the Texas Department of Public Safety. TxDPS also requires a drug education program that must be completed within the 180 day suspension. A person must also pay a reinstatement fee of $100, along with any other outstanding fees owed. Lastly, a person must also maintain a Financial Responsibility Insurance Certificate (SR 22) for two years from the date of conviction.

Defense

If you have received a citation for possession of marijuana, a police officer claims that you knowingly or intelligently possessed a usable quantity of marijuana. The offense of possession of marijuana can be broken into three primary elements that a prosecutor will have to prove beyond a reasonable doubt:

• Possession
• An individual must be in possession of marijuana. Possession involves the exercise of control, management, or care over the controlled substances. Possession can also be constructive, when an individual has the ability to control the object (e.g., in passenger seat while the individual is operating the motor vehicle). Presence, accessibility, and proximity are among several issues that may be sufficient to establish possession. If an individual is not in exclusive possession, the State is required to present evidence affirmatively linking the individual to the marijuana by the facts and circumstances of the specific case.

• Knowingly or intelligently possessing
• An individual must have knowledge that they are possessing marijuana. If an individual is unaware of their possession, they are not committing a crime. A few examples of situations where an individual might have knowledge they are possessing an item, but they do not have knowledge they are possessing marijuana are:
• Borrowing a friend’s car in which the friend has a stash of weed in the trunk and the individual never opened the trunk. An individual has knowledge of their possession of the car, but not the marijuana inside.
• Holding a purse for a friend in which the purse has a bag of weed in it. An individual has knowledge of their possession of the purse, but not the marijuana inside.

• Usable quantity
• A usable quantity is an amount sufficient to be used in the common use of marijuana (i.e., rolling a blunt, smoking a bowl, etc.); amounts less than a gram are considered to be useable. An amount that is not usable is not illegal. However, even small amounts that could allow a “resin hit” can amount to a usable quantity that is still illegal.

The exact language of this law, further details, and additional punishment concerns can be found in section 481.121 of the Texas Health & Safety Code. None of this information can take place of the information, knowledge, and expertise provided by a licensed attorney.