It’s no secret that America’s attitude toward cannabis is evolving to become more tolerant.
In 2020, the Austin City Council passed a resolution to stop arresting or ticketing people for possessing small amounts of marijuana. Since then, low-level marijuana possession has been essentially decriminalized. Further, CBD, Delta-8 THC, and Delta-9 THC products are now bought and sold in stores.
The policy and attitude changes toward cannabis have been a major win for our city, particularly when it comes to racial justice. Studies show that although people of color are no more likely to use marijuana than white people, they are more likely to face criminal charges for doing so. Black people are four times more likely to be arrested for pot than white people.
Still, with all the changes, you may be wondering, what exactly is allowed? Can I smoke a joint? Make pot brownies? Consume CBD oil?
In this article, criminal defense attorney Chris Perri will unpack the laws and policies around marijuana in Austin, Texas. That way, you can be as informed as possible and know your legal rights.
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So, is marijuana legal in Austin now?
Not exactly. Technically, across the state of Texas, even in Austin, any amount of marijuana is illegal. In Texas, possession of marijuana (POM) refers to the possession of the marijuana part of the cannabis plant itself. This includes the seeds, flowers, and leaves—the parts of the drug that make you high (it comes from a chemical called THC, which stands for tetrahydrocannabinol). Marijuana is what someone would smoke or consume from:
- Joints
- Pipes
- Bongs
- Or other types of drug paraphernalia.
Vaping pens with vaping oils made from THC are categorized differently–more on that later.
To be clear: it is illegal to possess the marijuana part of the cannabis plant, whether you intend to sell it or not.
That said, Texas does view marijuana as less severe than other drugs such as heroin, cocaine, crack, and meth. Whether rolled in a blunt or growing in your backyard, the marijuana plant is illegal, but it is NOT considered a controlled substance. The charge for POM can vary from misdemeanor to felony, depending on the amount you have and if the police believe you were engaged in the sale and delivery of it. It will also vary by county.
I thought you just said marijuana was decriminalized in Austin?
Correct. In 2020, the Austin City Council and Austin Police Department agreed to refrain from bringing charges against someone possessing misdemeanor amounts of marijuana. That ranges from 0 to 4 ounces. In May of 2022, voters approved a ballot proposition that decriminalizes 4 ounces and less of marijuana, which codified into law the City Council’s 2020 policy decision
To be clear, decriminalization is NOT the same as legalization.
Decriminalization means that local law enforcement is choosing not to enforce certain laws. Travis County had already enacted policies to reduce criminal cases due to marijuana, such as giving tickets instead of arrests for small amounts of marijuana, but the new policy takes things even further. If an Austin police officer sees you smoking a joint, they will probably just ignore it now.
In all likelihood, you will not face legal charges in Austin for possessing a recreational amount of marijuana.
Even if a police agency were to arrest you for a misdemeanor amount of marijuana, the County Attorney, Delia Garza, rejects the prosecution of almost all misdemeanor marijuana charges.
How is decriminalization different from legalization?
Legalization means that marijuana can be legally bought and sold. In some states, such as Colorado and Oregon, marijuana is fully legal, while in others, marijuana has been decriminalized, meaning the police won’t arrest you if they see it in small amounts. In Texas, marijuana is illegal, but in some cities, such as Austin, authorities are electing not to prosecute for small amounts of possession.
However, if you are caught selling weed in Travis County, you will still face criminal charges.
What about pot brownies? Are they decriminalized in Austin, too?
No. If the marijuana part of the cannabis plant has been altered or used as an ingredient in a product, Texas law now considers the drug to be THC instead of marijuana. As a reminder, THC is the psychoactive chemical in marijuana. In Texas, THC is considered a controlled substance. Possession of a controlled substance (POCS), whether for personal use or with the intent to distribute, is a much harsher crime than a POM. While Travis County prosecutors will probably have more leniency than rural areas in Texas, a cop will still arrest you for POCS.
In Travis County, District Attorney Jose Garza, has instituted policies to ensure that felony THC cases aren’t treated harshly by our criminal justice system. Usually, Garza’s prosecutors will dismiss a felony THC case upon completion of a drug awareness class and some community service. If the amount of THC is less than a gram, Garza won’t even file a charge in the first place.
What does THC look like? How is it consumed?
This is the part that gets confusing, but it’s very important to understand: Any products derived from marijuana are considered THC products. This includes, for example:
- Marijuana candies bought legally in Colorado
- Vape pens from California
- Any drinks, snacks, pills, vape oils, or tinctures infused with the drug bought anywhere, even if homemade.
These are all technically controlled substances. So, if you make pot brownies, you now possess THC instead of marijuana. Yes, all you did was add sugar, flour, and butter, but you’ve now technically transformed the plant into a controlled substance, and thus transformed the potential penalties if you get caught, even in places like Austin.
Possessing even trace amounts of a controlled substance is a felony crime. Perhaps even scarier, the severity of a charge is determined by the amount of the drug you have. The way the police determine the amount is by weight. So this means that smoking a joint is okay in Austin, but having a pot brownie is not.
Even though THC products are often made of other ingredients besides just the THC, the cops will weigh the entire product and use that total weight amount to determine your charge. So, if your weed cookies weigh 4 grams or over, you now technically possess 4 grams of a controlled substance, which is a serious offense (2nd degree felony) that can often lead to steep penalties, fines, and even prison time.
Delta-8 and Delta-9 THC products are the exceptions to this rule, as currently, they can be bought and sold in stores in Austin. To learn more about local Delta-8 policies, click here. To learn more about Delta-9 policies, click here.
What about CBD? Is it legal in Austin or just decriminalized?
CBD is legal across Texas – it can be bought and sold at shops, as you’ve probably noticed them pop up on every corner.
In 2019, the governor of Texas enacted a law stating that products derived from the hemp portion of the cannabis plant–which is different from the marijuana part–are legal, so long as they contain less than 0.3 percent concentration of THC. The hemp portion includes sterilized seeds, roots, and stalks.
How the distinction between hemp vs. marijuana in CBD products is measured and enforced is new terrain, but the rationale goes that, because CBD products have low levels of THC, they can be legal.
What should I do if I am arrested for a marijuana-related crime?
If you’ve been arrested for a drug offense, whether in Austin or in a rural county nearby, you will need an attorney to represent you (for tips on how to get out of jail quickly, click here for more information). If you cannot afford a lawyer, the county will provide you with a court-appointed public defender, but it’s ideal to hire someone with an extensive understanding of drug law. Fighting drug charges often requires a technical understanding of search and seizure law, and can be complex to navigate. You want a lawyer who can give your case the time and attention it deserves.