Though Texas has legalized the use of hemp — which the legislature defined in 2019 to include cannabidiol (CBD) that contains less than 0.3 percent concentration of tetrahydrocannabinol (THC), the plant’s component that causes psychoactive effects — and the medical prescription of cannabis products with less than 0.5 percent THC, use of marijuana is illegal in the state.
Possession of less than two ounces of marijuana is a Class B misdemeanor punishable by up to 180 days in jail or up to a $2,000 fine; possession of two to four ounces is a Class A misdemeanor with double the penalties; and possession of more than four ounces is a felony.
After the legislature legalized hemp in 2019, though, the number of prosecutions for marijuana drastically dropped.
That decline was due in part to the difficulty for law enforcement in measuring the THC content of a cannabis product — a measurement needed to determine if it is legal hemp or illegal marijuana under state code.
Added to the confusion caused by the state law, several local jurisdictions in the state have taken steps to decriminalize the use of the drug and reduce the penalties associated with it.
During the last legislative session, Reps. Joe Moody (D-El Paso), Nicole Collier (D-Fort Worth), James White (R-Hillister), Harold Dutton (D-Houston), and Dade Phelan (R-Beaumont) introduced House Bill (HB) 63 to decriminalize possession of small amounts of marijuana.
The legislation soared through the Texas House with a high tally of 103 yea votes, but didn’t go any further, with Lt. Gov. Dan Patrick bluntly declaring the bill “dead in the Texas Senate.”
“I join with those House Republicans who oppose this step toward legalization of marijuana,” he tweeted. Patrick never assigned the bill to a committee.
With Phelan now the presumptive House Speaker, the success or failure of marijuana legislation during the 87th Legislature will likely once again hinge on Patrick’s openness or opposition to reform.
Patrick’s office did not respond to a request for comment at the time of publishing.
This year, Rep. Erin Zwiener (D-Driftwood) announced that she was taking the lead on Moody’s previous decriminalization bill and that Moody would push for legalization.
Zwiener’s bill, HB 441, is identical to the engrossed version of HB 63 that the House passed in 2019.
“Our current cannabis laws don’t make sense,” said Rep. Zwiener in a press release.
“We’re leaving dollars on the table, wasting public safety funds on enforcement, and saddling Texans with unnecessary criminal records that harm their ability to find work and housing. It’s time to bring our cannabis laws into the 21st century, and I’m eager to get to work on reducing penalties for possession of cannabis.”
Moody still supports the decriminalization bill, but for this session, he is filing a bill (HB 447) to outright legalize the use of marijuana.
“The different approaches here all have the same goal: ending a status quo we know has never worked, one that’s cost taxpayers billions of dollars and stolen opportunities from countless Texans saddled with unjustified criminal records. Frankly, anything is an improvement over what we’ve been doing,” said Moody.
Under his legislation, adults over 21 would be permitted to possess two and a half ounces of marijuana as well as up to 12 cannabis plants on their property.
Smoking weed in public would still be illegal, unless an area is otherwise designated by a political subdivision and inaccessible by individuals younger than 21.
The bill also details regulations for the manufacture, transportation, and sale of the intoxicant, and stipulates that a portion of the 10 percent sales tax would go to local governments, new funds to regulate the cannabis industry, and a fund for public school teachers.
“One thing that’s become crystal clear in the years since I began working on cannabis policy is that there’s no moral or public safety issues involved here,” said Moody. “There is very much a fiscal issue, though, and numerous other states are now raking in tax revenue from cannabis sales that Texas needs more than ever. We can’t say that Texas is the best state for business when we’re literally turning it away.”
Potential tax revenue from the legalization of marijuana is a recurring soundbite among supporters of the proposal, especially in light of the state’s budget woes from the coronavirus lockdowns and crestfallen oil and gas industry, though other states to legalize marijuana have found that projections of tax revenue were overestimated.
State Senator-elect Roland Gutierrez (D-San Antonio), who filed a similar bill (SB 140) to legalize marijuana for recreational use made the same financial argument.
“Texas will be facing tremendous budgetary challenges next session. My bill would create 30,000 new jobs for our state and produce $3.2 billion in new revenue WITHOUT raising taxes on everyday Texans,” he tweeted.
In addition to the bills from Moody and Gutierrez to legalize marijuana, a couple of joint resolutions also propose amendments to the Texas Constitution that would accomplish the same goal: Rep. Terry Canales (D-Edinburg) filed HJR 13 and Sen. Sarah Eckhardt (D-Austin) filed SJR 16.
Several bills to expand the medical use of marijuana have also been filed, including:
- Rep. Alex Dominguez’s (D-Brownsville) HB 43;
- Rep. Ron Reynolds’ (D-Missouri City) HB 94 with companion bill SB 90 from Sen. José Menéndez (D-San Antonio);
- Reynolds’ proposed constitutional amendment, HJR 11;
- and another proposed constitutional amendment from Rep. Lyle Larson (R-San Antonio), HJR 28.
Larson is not the only Republican to file a marijuana-related bill.
Rep. Steve Toth (R-The Woodlands) filed a decriminalization bill, HB 99, that would drop the penalties for possession of less than two ounces of marijuana to a Class C misdemeanor, a low-level crime not punishable by jail time.
Several Democrats have filed similar decriminalization bills, which vary in their adjustment of current punishments.
At the other end of the spectrum, only one bill pre-filed thus far tightens state law against marijuana users.
HB 423, filed by Rep. Ken King (R-Canadian), would require applicants for the Temporary Assistance for Needy Families government welfare program to submit to marijuana tests in order to receive aid.
A full list of marijuana-related legislation throughout the 87th Legislature will continue to be updated here, as identified by Texas Legislature Online.
Disclosure: Unlike almost every other media outlet, The Texan is not beholden to any special interests, does not apply for any type of state or federal funding, and relies exclusively on its readers for financial support. If you’d like to become one of the people we’re financially accountable to, click here to subscribe.
Daniel Friend is the Marketing and Media Manager for The Texan. After graduating with a double-major in Political Science and Humanities, he wrote for The Texan as a reporter through June 2022. In his spare time, you're likely to find him working on The Testimony of Calvin Lewis, an Abolition of Man-inspired novel and theatrical podcast.