June 26, 2022



Houston and Harris County marijuana and THC and Delta 8 laws

5 min read

The U.S. cannabis industry is regulated in patchwork fashion across different states and regions, which makes navigating the legalities a confusing affair for cannabis users. In recent years, users have watched laws around recreational consumption change at breakneck speeds, being decriminalized in some states and counties to outright legalized in others. The differences in medical and recreational uses and gray areas such as the Delta 8 strain have played a role in this confusion, leading to a complicated medley of laws that often create different penalties from county to county. 

If you want to make sense of all of the Texas laws and how they apply to THC possession, which now includes Delta 8 THC, read this comprehensive explainer. 

When is cannabis possession legal in Texas?

Cannabis possession is only legal if you’re allowed medical usage under the state’s Compassionate Use Program enacted in 2015. House Bill 1535, which went into effect last September, expanded the allowable THC limit for medical patients from 0.5 percent to 1 percent. Texas is known for having one of the most restrictive medical use laws in the country, so this is actually a considerable expansion. Which conditions qualify someone for the program? While this is not comprehensive, the list includes cancer, autism, amyotrophic lateral sclerosis (ALS), multiple sclerosis (MS), cerebral palsy, Alzheimer’s and post traumatic stress disorder.

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Unlike other states, however, Texas does not offer or issue medical use cannabis cards. Instead, qualifying patients who are Texas state residents need to get approval from a doctor registered in the Compassionate Use Program.

What about recreational cannabis?

Several Texas companies make and sell Delta 8 products, an isomer to marijuana's active ingredient.

Several Texas companies make and sell Delta 8 products, an isomer to marijuana’s active ingredient.

Yuri Kriventsoff/Getty Images

Recreational use cannabis is illegal in Texas. Any type of possession is punishable under Texas state law—but when and how gets complicated. According to the National Organization for the Reform of Marijuana Laws, Texas law stipulates that possessing or cultivating less than four ounces of cannabis is a misdemeanor. If you possess or cultivate four or more ounces, then you’re committing a felony. If you sell fewer than seven grams, you’re committing a misdemeanor—and at seven or more, a felony. But that’s not all. If you possess, cultivate, or sell hash or its concentrates in any amount, it’s a felony. And then there’s weed paraphernalia such as bongs. If you possess one, you’ll be charged with a misdemeanor. If you’re selling, that’s also a misdemeanor on your first offense. On a second offense and in cases of repeat offenders, charges are upgraded to a felony. If you get caught falsifying a drug test, you’ll face a misdemeanor.

What about Harris County’s Marijuana Diversion Program?

In recent years, Harris County’s diversion program for low-level marijuana offenses has drastically reduced misdemeanor arrests for cannabis possession. The diversion program applies in cases involving fewer than four ounces of marijuana, giving those involved the option to avoid arrest, tickets or court appearances if they take a four-hour drug education class within 90 days. There are exceptions to the program, however, including possession in a drug-free zone or packaging that indicates an intent to distribute.

What about Delta 8?

Delta 8, commonly known as “weed light” and found over the counter at your corner smoke shop, remains legal in Texas and will likely remain that way for some time, advocates say. 

The substance is an isomer to THC, or tetrahydrocannabinol, which is the active ingredient in marijuana. When the U.S. and Texas both legalized hemp in recent years, that opened up the possibility for hemp-derived cannabinoids to proliferate. Delta 8 products are available in edibles, buds and concentrates. 

In 2021, the Texas Department of State Health Services attempted to quietly add Delta 8 to the state’s list of controlled substances. Advocates with the Texas Hemp Federation and business leaders balked at this maneuver and sued the agency to block it. In November, a judge signed a temporary injunction barring the department from adding Delta 8. The department, represented by the Texas Attorney General’s Office, appealed that ruling to an appellate court, where the case has sat since November. 

Jay Maguire, Texas Hemp Federation’s executive director, said that legal battle could last till the end of 2023. 

“To get a temporary injunction, the [judge] has to be convinced that you’re likely to succeed in the bigger case,” Maguire said. “People get the wrong idea about ‘temporary,’ like somehow it’s a technicality. We’ve already made a substantial part of our case, and the judge sided with us.”

Texas legislators could take up the issue during their next regular session, which begins in spring 2023. 

What are the penalties for traditional marijuana?

You can get all the details on the misdemeanor and felony classes along with the subsequent penalties on the Norml and Texas state law sites. Here are the highlights:

Penalties for possession

  • Under 2 ounces—Class B misdemeanor, up to 180 days in jail and a $2,000 fine
  • 2 to 4 ounces—Class A misdemeanor, up to one year in jail and a $4,000 fine, or the county’s diversion program.
  • 4 ounces to 5 pounds—Felony with a mandatory 180-day sentence, potentially extended up to 2 years, and up to a $10,000 fine
  • 5 pounds to 50 pounds—felony with a mandatory 2-year sentence, potentially extended up to 10 years, and up to a $10,000 fine
  • 50 pounds to 2,000 pounds—second degree felony, mandatory 2-year sentence, potentially extended up to 20 years, and up to a $10,000 fine
  • 2,000 and upwards—felony with five-year minimum, possibly up to life, and up to a $50,000 fine Penalties for cultivation

Penalties for cultivation

The cultivation penalties are similar to those of possession.

Penalties for selling or delivering

If you sell or deliver cannabis and are caught, you’ll be subject to escalating sentencing ranging from misdemeanor to felony charges. The penalties are similar to ones for possession, and the punishments escalate accordingly depending on the amount of weed involved.

What about hash and concentrates?

Texas law does not consider hash or concentrates to be marijuana. As a result, the penalties are much harsher, and all are considered to be felonies.

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