top of page

Are THC Vape Pens Legal in Texas?

No, THC vape pens are not legal in Texas.  You can be arrested and any amount at all is a Felony.  Penalties depending on the amount of THC you possess can be between 6 months and life in prison.  


You risk getting arrested in places like Montgomery County, The Woodlands, Conroe, and many other locations in Texas, as arrests are being made for any vape pen containing a THC product or a cartridge. If you possess a THC-related cartridge, whether it's Delta 8, 9, 10, or any variation, it doesn't matter; the police cannot conduct on-the-spot field tests to determine THC percentage. Consequently, they won't consider it less than the 0.03% content required for Cannabis sativa L, the marijuana plant.


If you have a small amount of the plant in a baggie, it's a misdemeanor, a possession of marijuana case. However, if you have THC in a distilled form like wax or a cartridge, you could be charged with a state jail felony, possession of a controlled substance in penalty group two, even if it's less than a gram. Most cases involve between one and four grams, leading to a third-degree felony charge with a punishment range of two to 10 years in prison. A common question from those arrested is, 'I bought this at a store; how can they arrest me for it?' The complex administrative regulations around edibles and THC concentrate substances, coupled with stores having permission from the Agriculture Department in Texas, can protect sellers.


However, if you're in your car without paperwork, they may assume you're using it to get high, leading to an arrest. The potential challenge lies in questioning probable cause. If your case is eventually dismissed, individual challenges may be possible. Although statewide challenges are rare, young individuals with no criminal history often find themselves in this situation.


THC vape pens, even those seemingly nondescript, can result in criminal charges, and even CBDs have tested positive for THC, leading to legal consequences. My advice: don't mess with these things. Even if a product appears harmless, an arrest goes on your record. Even if the case is dismissed, a full expunction of records is necessary for it to be removed from your criminal record—a lengthy and expensive process. In summary, THC vape pens are not legal in Texas. If you value your record, it's best to avoid the risk.

THC Falls under Penalty Group 2 of the Texas Health and Safety Code. 


Chapter 481 of the Texas Health and Safety code is called the Controlled Substances Act. 

Penalty Group 2 includes the following substances: 

  • 3,4-methylenedioxy methamphetamine (MDMA, MDM) (Commonly known as Ecstasy, or X) 

  • Tetrahydrocannabinols (Marijuana oil, wax, or edible marijuana products containing greater than a 0.3 % Delta-9 THC content.)

There are many other substances listed under penalty group 2 but these two account for 99% of all Penalty Group 2 arrests. 

What do conditions of bond mean? 

Judges will regularly impose conditions on the freedom of people charged with a crime even before they have been convicted.  If you are charged with a Penalty Group 2 felony charge in Montgomery or Harris County you will be required to report to the probation department and to submit to random urinalysis or “urine tests” to ensure that you have not been using drugs or alcohol.  This is true even if you are not charged with an alcohol related offense.  Judges may prohibit you from consuming alcohol if you have been released on a felony bond with bond conditions. 


If bond conditions are not followed you may end up in jail even after you have made a surety bond and been released.  An allegation by the probation department that you tested positive on a  drug test could land you back in jail until your case is tried to a jury or reaches a plea bargain agreement. 

What does possession mean?  The drugs didn't belong to me.  

It is illegal to possess a substance listed in penalty group 2.  The prosecution does not have to prove that ownership of the drug.  There is no legal requirement for proof that you were the person who originally purchased the drug.  This is because the term possession has a specific legal definition.  


“Possession” means actual care, custody, control, or management.


This definition has been held to require that if the person charged with a  crime is not in exclusive possession of the substance that there be “affirmative links” between the person and the prohibited substance.  For example:


  • Being the driver and only person in a car where the prohibited substance was found;

  • The person charged with a crime makes nervous or “furtive” gestures which appear that the person is trying to conceal the prohibited substance;

  • The person charged was in very close proximity to the prohibited substance and the substance was accessible (meaning it wasn’t in a locked container to which the person didn’t have a key);

  • The person was found to have been texting or calling another individual coordinating the transportation or concealment of the prohibited substance.


There is no specific test or number of affirmative links that will predict if the court dismisses the case or allows it to be upheld on an appeal rather it is the “logical force” of the links as they are presented.  This means that if it is a stretch to say you were really in possession of the prohibited substance then a prosecutor can’t simply list out a bunch of silly reasons and call it “affirmative links.”  There has to be something substantial showing a logical connection between the person charged with a  crime and the prohibited substance found by the police. 

What is the punishment for Possession of a controlled substance Penalty Group 2?

The punishment depends on the amount of the substance that can be proved. 


  • 0-1 gram – State Jail Felony – 180 days – 2 years in a State Jail Facility and a $10,000 fine.

  • 1-4 grams – 3rd Degree Felony – 2 years – 10 years in Prison and a $10,000 fine.

  • 4-400 grams – 2nd Degree Felony – 2 years – 20 years in Prison and a $10,000 fine.

  • 400 or more grams – Enhanced 1st Degree Felony – 5 years – 99 years or Life in Prison and a $50,000 fine.


For all of these offenses you could be placed on deferred adjudication probation for up to 10 years and the applicable fine.  These punishments are enhanced if you are not found to be merely in possession of the prohibited substance but are in possession with intent to deliver the substance to another. 

Possession of a Controlled Substance Lawyer Montgomery County Texas



Serving Houston and Conroe and Surrounding Areas

bottom of page