Is Marijuana Considered an Illegal Controlled Substance in the Eyes of Texas Law?

It’s no secret that America’s attitude toward cannabis is evolving to become more tolerant. In some states, it’s now legal to buy and sell recreational amounts of marijuana and hemp—the two parts of the cannabis plant—while in other states, it’s allowed for medicinal purposes. According to the federal government, cannabis is technically illegal everywhere, but for the most part, the feds stay out of it and let each state decide for themselves. This is why even neighboring states can have completely different policies. For instance, in New Mexico, cannabis is now fully legal, while in Texas it is not.

With the constant change in laws and policies around the drug, it can be confusing to stay up to date on where Texas stands. Complicating this conversation is the influx of legal CBD, Delta-8 THC, and even Delta-9 THC products.

So, what’s going on? As of now, in 2023, is marijuana an illegal controlled substance in the eyes of Texas law?

Well, the answer depends.

Below, experienced criminal defense lawyer Chris Perri breaks down the facts so that you can be as informed as possible when it comes to drug law. If you or someone you know is currently facing drug charges in Austin or nearby, reach out to our criminal defense firm. We’re here to help.

Possession of Marijuana in Any Amount Is Illegal in Texas

In Texas, possession of marijuana (POM) refers to the possession of the marijuana part of the cannabis plant itself. This includes the seeds, flowers, and leaves—the parts of the drug that make you high thanks to a chemical called “THC.” THC stands for tetrahydrocannabinol. Marijuana is what someone would smoke or consume from:

• Joints

• Pipes

• Bongs

• Or other types of drug paraphernalia.

Vaping pens with vaping oils made from THC are categorized differently--more on that later.

To be clear: it is illegal to possess the marijuana part of the cannabis plant, whether you intend to sell it or not.

That said, Texas does view marijuana as less severe than other drugs such as heroin, cocaine, crack, and meth. Whether rolled in a huge blunt or growing in your backyard, the marijuana plant is illegal but NOT considered a controlled substance. The charge for POM can vary from misdemeanor to felony, depending on the amount you have and if the police believe you were engaged in the selling and delivery of it.

Weed Decriminalization in Travis County

Some counties in Texas, such as Travis County, have enacted local policies to essentially decriminalize possessions of small amounts (less than four ounces) of marijuana. This doesn’t mean the drug is legal, but it does mean that law enforcement will probably not put you in jail for having a personal amount of the plant. Instead, they may give you a ticket.

In Most Cases, Texas Considers THC a Controlled Substance

If the marijuana part of the cannabis plant has been altered or used as an ingredient in a product, Texas law now considers the drug to be THC instead of marijuana. As a reminder, THC is the psychoactive chemical in marijuana. In Texas, If a product contains a Delta-9 THC amount of 0.3% or greater, then it is considered a controlled substance. (Delta-9 THC is what the law explicitly references.) Possession of a controlled substance (POCS), whether for personal use or with the intent to distribute, is a much harsher crime than a POM.

 So, what does THC look like? How is it consumed?

This is the part that gets confusing, but it’s very important to understand: Any products made from marijuana are considered THC products. This includes, for example:

• Weed brownies

• Ganja butter

• Marijuana candies bought legally in Colorado

• Vape pens from California

• Any drinks, snacks, pills, vape oils, or tinctures infused with the drug—even if homemade.

These are all technically controlled substances. So, if you make pot cookies, you now possess THC instead of marijuana. Yes, all you did was add sugar, flour, and butter, but you’ve now technically transformed the plant, and thus transformed the potential penalties if you get caught.

Possessing even small amounts of a controlled substance is a state jail felony crime. Yes, some county prosecutors, such as the DA’s office in Travis County, forego pressing charges on very small amounts of controlled substances, but most don’t. Perhaps even scarier, the severity of a charge is determined by the amount of the drug you have. The way the police determine the amount is by weight. 

Even though THC products are often made of other ingredients besides just the THC, the cops will weigh the entire product and use that total weight amount to determine your charge. So, if your weed cookies weigh 4 grams or over, you now technically possess 4 grams of a controlled substance, which is a serious offense (2nd degree felony) that can often lead to steep penalties, fines, and even prison time. 

If you’ve been arrested, it’s essential to reach out to a proven drug crimes attorney in Austin, such as Chris Perri, right away.

What about CBD, Delta-8 THC, and Delta-9 THC Products Sold in Stores?

This is where the laws get even trickier and somewhat contradictory. However, we’ll do our best to explain.

Around five years ago, federal and state laws passed that allowed for hemp products to be bought and sold legally in Texas. According to these new laws, hemp is defined as any cannabis product that contains 0.3% or less of Delta-9 THC, which is the chemical in cannabis that creates a high.

CBD

Soon after, CBD hit the market. CBD is short for the chemical “cannabidiol,” which comes from the hemp part of the cannabis plant and typically has low amounts of THC. Many claim CBD can help with pain, relaxation, and anxiety without creating a buzz.

Delta-8 THC

Following the success of CBD, cannabis entrepreneurs soon came up with the idea of selling products containing Delta-8 THC, which unlike Delta-9 THC, is not directly mentioned in the laws so thus is not explicitly illegal. Weed entrepreneurs realized that if they extract all THC from a cannabis plant, they can then spray back on just the Delta-8 THC while leaving the Delta-9 THC out. Delta-8 THC doesn’t illicit quite as strong of a high, however it is still a mind-altering, psychoactive substance now legally sold across Texas.

Delta-9 THC

Most recently, cannabis innovators have found another legal loophole to bring more products – this time Delta-9 THC ones – to the market.

Weed entrepreneurs are using the “0.3% rule” to their advantage. Basically, they are creating products containing real Delta-9 THC, such as edibles, as long as the total Delta-9 THC in said products amounts to 0.3% or less of the total product’s weight, which is what the new law technically allows for. If they make the product’s total weight high enough, then the 0.3% of Delta-9 THC included can absolutely still be enough to create a strong high.  

So yes, it is illegal to have marijuana flower, but legal to have certain THC dummies that adhere to the 0.3% rule.

Use Caution with These New Products

The legality of these products is shaky. Many politicians are actively fighting to outlaw Delta-8 and Delta-9 THC products, as they feel the law has been misappropriated. On the flip side, many are advocating to expand cannabis legalization.

At Chris Perri Law, we’ve encountered individuals arrested for products that they bought legally in Travis County stores, as law enforcement officers are not always certain where a product came from or its exact ingredient ratio. If you’ve been arrested for possession of a controlled substance or marijuana, whether bought legally or not, it is vital that you reach out to a knowledgable attorney such as Chris Perri straight away.

What to Do if Facing Drug Charges in Austin, or Anywhere in Texas:

If you’ve been arrested for a drug crime in Travis County, Hays County, Williamson County, or anywhere in Texas, you need an attorney with an extensive understanding of the most up-to-date drug laws. Fighting drug charges often involves a technical understanding of search and seizure law and can be complex to navigate. 

With nearly 20 years of experience as a criminal defense attorney in Austin, Chris Perri has a proven track record of holding the police accountable for unlawful searches. Just because you got caught with homemade THC brownies or a bag of pot doesn’t mean your future has to be over. Chris will fight for you—and win.

 Whether the Texas drug charge is a felony or misdemeanor, call Chris Perri today at (512) 269-0260 or visit www.chrisperrilaw.com for a free case consultation. You deserve the best defense.