top of page
  • Writer's pictureBrian Foley

Montgomery County Marijuana Lawyer - POSS MARIJ <2OZ - Montgomery County, Texas

Montgomery County Marijuana Lawyer - POSS MARIJ <2OZ - Montgomery County, Texas

Brian Foley - Board Certified in Criminal Law

"Howdy, I'm Brian Foley. I'm a criminal defense attorney in the Montgomery County area, which includes Conroe, The Woodlands, just north of Houston. We also handle cases in Houston and the surrounding area, but today, we're focusing on Montgomery County. We're talking about possession of marijuana. Yes, it is still illegal to possess marijuana in the state of Texas. We get calls on this all the time. People have either bought it at a smoke shop, bought it from another state, or they have a prescription from a doctor in another jurisdiction. In Texas and specifically in Montgomery County, none of that matters. It is still a crime to possess marijuana, and they are still making arrests. You're going to be going through the judicial system here in this county.

So, what happens when you get arrested for possession of marijuana in Montgomery County? Let's go through a typical scenario. About 99% of these cases are because someone's been driving. They've been pulled over, either for speeding, a failure to maintain a single lane, or something like that, some innocuous traffic stop. Then, when the officer approaches the vehicle, they smell the marijuana, or if they don't smell marijuana, they get consent to search. Now, one of the things that we tell clients is that if you are stopped by the police, you have no duty to consent to a search of your vehicle. There's no reason that you have to consent to a search. So, if you do consent to a search, it doesn't matter if the officer had probable cause to search. Your consent gives them the ability to search that vehicle pretty much top to bottom. If you do not give that consent to search, then the police have to have what's called reasonable suspicion to pull you over and then probable cause to search your vehicle. Probable cause in marijuana cases is often determined to be found when there is the odor of marijuana. But that is changing a little bit from jurisdiction to jurisdiction. In Montgomery County, the odor of marijuana is still considered probable cause. But in neighboring counties, I've seen judges decide that the odor alone of burnt marijuana is not probable cause. And the reason for that is because of a special law that defines the plant Cannabis sativa L with less than a 0.3% THC concentration as what's called Industrial Hemp. It is not classified as marijuana when it's under 0.3%. So, if you have a judge that's willing to listen to that, the odor of marijuana that's below 0.3% THC and the odor of marijuana over that THC percentage is going to smell very similar. So, the question now is, is it really probable cause to search a vehicle when all you have is the odor of marijuana? Previous decisions have said yes, but that was when the entire plant, no matter what the THC content was, made illegal. That is not the case anymore.

So, when you get arrested in Montgomery County, what happens? Well, you're taken to the jail typically, but also officers can do another thing. They could search or they could seek a warrant for your arrest. Why wouldn't they just arrest you that day? Well, maybe they don't want to go through the hassle. Maybe they think they're giving you a break by not doing this, but it really is quite a pain. We'll get calls from people who've gotten a ticket for possession of marijuana, and they'll say, 'Well, this is just a ticket.' It's like, no, you're going to have to turn yourself into the jail in Montgomery County even though you just got a ticket that day. They could be doing something called site and release. Harris County was doing a thing called site and release back in 2019, 2020, and they may still be doing it. But site and release is where you are given the ticket and told when to come to court. However, in Montgomery County, what they're doing is giving you a citation and then going to get a warrant. Then what happens is you end up with a warrant for your arrest, even though they could have arrested you that day. You could have started the process, bonded out, and just gotten it over with. A lot of times, our clients would have preferred that that happened because now if they have a warrant, then they have to schedule a booking with a bail bondsman, which is a process where you talk to the bail bondsman, work out the price of the bail. If it's a PR bond or a personal recognizance bond, you may be able to just go to the jail and get booked in and booked out. But the Montgomery County Jail is really, really slow, at least when I'm recording this video in February of 2024. It's been very, very slow. We've had clients that were in there 9, 10 hours. All they were there to do was book in and book out. I've heard stories of people being in there for days sometimes.

So, what makes Montgomery County so different? Why are people being arrested for possession of marijuana here versus getting just tickets in other places or not getting arrested at all just a few miles south in Harris County? Well, Montgomery County is a very conservative county. It votes Republican overwhelmingly, and the county judge even erected a billboard that says that in Montgomery County, we take crime seriously, we prosecute cases. So, the district attorney's office, the law enforcement officials in Montgomery County, have decided to be particularly aggressive on really all types of crimes, but they're not letting this battle go. Whereas most other places around the country, around the state, have let this one go, in Montgomery County, it's not going to go like that. You're going to have to go to court, you're going to need a lawyer to help you with those things, and if you find yourself in this situation, we'd be glad to help. If you have any more questions about things like that, you should definitely talk to a lawyer. As always, these videos are just for educational purposes. But what kind of trouble could you be in? Well, let's look at the punishment ranges. An offense under 481.112 Z is delivery of marijuana. That's different from possession of marijuana. Delivery could be a felony, but most people are accused of just possession of marijuana. And you'd have to have a whole lot for it to be a felony. You'd have to have over five pounds, or less but more than four ounces of marijuana in order for it to be a state jail felony. So, if you have the day that you're arrested, let's say you have four ounces of marijuana right on the button, maybe 4.1 ounces of marijuana, then it's somewhat likely that over time, that marijuana is going to dry out as it's processed through the evidence lab with the Department of Public Safety or Houston PD or wherever it is. That weight of more than four ounces, if it's below that after it's dried out, then there's a chance your charge could get reduced down to a misdemeanor version. So, that's the state jail felony amount, is between four ounces and five pounds. The first class A misdemeanor version is between two ounces and four ounces, and then class B is the amount that is two ounces or less. And so, what that's been ruled to mean is a usable quantity of marijuana. It has to be a usable quantity. A usable quantity

means basically something that you could, in fact, smoke or use to get you high. So, something that fits in a one-hitter, which is like a very small device used to smoke a very small amount of marijuana, or like in a very small roach, that could be considered a usable amount under this statute because it's two ounces or less, meaning any amount at all. So, if it's a very, very small amount, you could still get arrested in Montgomery County. The other ranges of punishment, third-degree felony would be marijuana if it is 50 pounds or less but more than five pounds. So, five to 50 pounds, then 50 to 2,000 pounds would be a second degree, and then if it's more than 2,000 pounds, that is a first degree just for the possession. It's going to be pretty hard. That's like, you know, trucks of it.

If you have been arrested for this offense in Montgomery County, Texas, you've got to, they'll take you to the jail, you'll have to bond out. It can be fought in court, and we can be successful. We have been successful in many cases, but everything is fact-dependent, and a lot of the times though, our clients, when they call us about this, they've never had a conviction for anything in their life. They're scared to death. Don't wait for what your buddy says or something like that. Call a professional and get help. So thanks so much. Hopefully, you've enjoyed what you've seen, and tune in next time."

Sure, here's the section with the links included:


For more information and resources, please visit the following:

Montgomery County Law Enforcement Agencies:

- [Montgomery County Sheriff's Office](

- [The Woodlands Township Constable's Office](

Criminal Courts in Montgomery County, Texas:

- [Montgomery County Court at Law](

These resources can provide further guidance and assistance regarding legal matters in Montgomery County, Texas.

24 views0 comments


bottom of page