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  • Writer's pictureBrian Foley

Is Marihuana legal now in Texas? And why did you spell it with an "h?"

Updated: Feb 20, 2021

Effective June 10, 2019 HB 1325 changed the way that Marihuana was defined in Texas. First of all, why am I spelling Marijuana with an "h?" Well the Texas legislature makes the law and in their divine wisdom they wrote Health and Safety Code 481.002 (26) which defines a term they spelled "Marihuana."

Then they called it another crazy name, "The plant Cannabis sativa L." It sounds like what weed turns into after it goes through an artistic transformation like the artist formerly known as "Prince." So lets look at the definition of the plant formerly known as "marihuana."

"Marihuana" means the plant Cannabis sativa L., whether growing or not, the seeds of that plant, and every compound, manufacture, salt, derivative, mixture, or preparation of that plant or its seeds. The term does not include: ... (F) hemp, as that term is defined by Section 121.001, Agriculture Code.

And that section (F) is what HB 1325 added to the criminal statutory definition of marihuana that could throw a lot of cases into jeopardy. Here is why.

Section 121.001 Agriculture Code defines "hemp" exactly how the Health and Safety code defined "marihuana" and added a caveat that if there was a THC content of 0.3 or less then what you were carrying in a plastic baggie in your center console was legal.

"Hemp" means the plant Cannabis sativa L. and any part of that plant, including the seeds of the plant and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.

So if a police officer pulls you over and smells the distinct odor of the plant formerly known as Cannabis sativa L., how can he tell if it has a concentration of not more than 0.3 percent on a dry weight basis. Does this mean that if you throw your weed into a cup of water then the officer can't possibly get a dry weight basis analysis on the side of the road?

State run labs were not prepared to handle a switch in analysis from looking at the plant under a microscope to testing for THC concentration.

It took Houston's Forensic labs over a year to implement a protocol for testing. In recent months the Harris County DA's office has only been ordering tests for felony amounts of marihuana.

This is such a new area of law there is little guidance. Cases will be tried and appealed and we should have more clarity from the courts.

So is it Legal to possess marihuana in Texas? Well a strict legal interpretation of the term marihuana suggests that no it is not legal to possess marihuana. But it might be very difficult to prove that you possessed marihuana instead of hemp. If you're in Montgomery County you are going to be facing harsher consequences for possession of marihuana than you are if you're in Harris County. So if you're out there blazing it up, watch out for that county line and keep my number in your phone! (936) 596-0407


For litigants who do not have counsel: Reading this blog post does not create an attorney client relationship. Call to set up a free consultation. For the general public: This Blog/Web Site is for educational purposes only and it provides general information and a general understanding of the law, but does not provide specific legal advice. By using this site, commenting on posts, or sending inquiries through the site or contact email, you confirm that there is no attorney-client relationship created. Don't just read this as a substitute for competent legal advice from a licensed attorney. For attorneys: This Blog is informational and educational in nature and is not a substitute for Westlaw or other research and consultation on specific matters pertaining to your clients. As you know the law can change day to day based on recent case opinions. And unfortunately you shouldn't cite it in court as binding authority because it is not. Mention it to your friends, just seek real consultation if its something important.

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