marijuana charge in Texas

Despite the increasing decriminalization and legalization of marijuana in many states across the country, the possession of marijuana is still a criminal offense in Texas. In this blog post, our Austin drug charges lawyers answer the question, “Do you go to jail for a marijuana charge in Texas?” 

The short answer to this query is, you could, but it is much more complicated than that. The likelihood of going to jail for a marijuana charge in Texas depends on various factors—the amount of marijuana involved, prior convictions, and whether other crimes are associated with the charge. Read further to learn more.

Relevant Laws and Statutes

Texas is not known for its leniency on drug charges, including marijuana charges. Texas Penal Code § 481.121 outlines the penalties for marijuana possession. If you are caught with two ounces or less, you could be facing a Class B misdemeanor, punishable by up to 180 days in jail and a fine of up to $2,000. 

Get caught with more than two ounces but less than four, and you will be facing a Class A misdemeanor, and looking at up to a year in jail and a fine not exceeding $4,000. Anything over four ounces and you may be facing a felony charge with a mandatory minimum jail sentence from 180 days to 99 years depending on the quantity. 

The distribution or the intent to distribute marijuana is an entirely different thing. Even small amounts, under seven grams, can lead to a felony offense and incarceration in a state prison. If you are trafficking hundreds of pounds across state lines, you are likely looking at federal charges, which are often more severe than state charges.

Regulations and Prosecutorial Discretion

Some counties and cities in Texas have implemented “cite-and-release” policies. These policies allow law enforcement to issue citations for small amounts of marijuana instead of making an arrest. It is not a get-out-of-jail-free card, but it can mean the difference between sleeping in your bed or spending the night as a guest of the county.

Changes in Texas Marijuana Law: House Bill 218

Texas House Bill 218 is aimed at reducing penalties for low-level marijuana possession. But the bill, which was approved by the Texas House of Representatives in May 2023, failed in the Texas Senate. The mere introduction of such a bill signals a potential shift in the state’s perspective, toward the decriminalization of small quantities of cannabis or marijuana. But only time will tell if this change in perspective results in an actual change in legislation.

Do First Time Offenders Go to Jail for a Marijuana Charge in Texas?

While Texas has a reputation for being strict on drug offenses, first-time offenders do not always go to jail for marijuana charges. Often, they might qualify for “diversion programs,” which focus on education and rehabilitation over incarceration. But there is no guarantee. The outcome often hinges on factors like the quantity involved, the circumstances of the arrest, and the discretion of the prosecutor.

What Does “Usable Quantity” of Marijuana Mean in Texas?

In Texas, prosecutors must prove that you possessed a “usable quantity” of marijuana to secure a conviction. Generally, this means that you must have been in possession of an amount sufficient to be consumed or used as is. You cannot be convicted for just having marijuana residue or shake, for instance. The concept of usable quantity, while seemingly straightforward, can be contentious in court, especially if you are caught with a borderline amount.

How to Beat a Marijuana Charge in Texas?

While there are no get-out-of-jail-free cards when it comes to Texas marijuana charges, there are a few strategies an experienced drug charges lawyer in Austin might be able to employ:

  1. Question the legality of the search or seizure: Did the police have a valid reason to search you or your property? If not, your attorney may be able to get the case dropped.
  2. Dispute the actual possession: Were you holding the bag, or was it just near you? Proximity does not always equate to possession.
  3. Challenge the “usable quantity” concept: Maybe it was not enough to roll even the tiniest joint. Arguing the amount can sometimes work in your favor.
  4. Enter a diversion program: As a first-time offender, you might be able to avoid a conviction with programs focusing on rehab over punishment.


To conclude, the odds of going to jail for a marijuana charge in Texas largely depend on the specifics of your case. Small amounts for personal use may land you a lighter sentence or even just a citation in some areas, especially if you have no prior convictions. But selling or trafficking marijuana can result in serious jail time.

And remember, while marijuana laws are changing across the country, Texas has not jumped on the bandwagon just yet. Until there is a change in legislation, discretion is your best companion.

When faced with a marijuana charge, Texas defendants would do well not to gamble with their freedom. An experienced criminal defense attorney in Texas can advise on the best course of action to avoid jail time and resolve the charge with the most favorable outcome possible.

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