As the popularity of vaping increases as an alternative smoking cigarettes or marijuana, the THC oil in vape pens is a felony in Texas. Different classifications have been established for the different forms of cannabis. While possession of marijuana is generally a misdemeanor (barring large quantities), any amount of THC concentrate starts at a felony.
Though the medical use of cannabis was recently expanded in Texas via House Bill 3703, any recreational use or non-prescription medicinal use is illegal in Texas. While there are programs in Travis County, Bexar County, and Harris County to avoid jail time if only caught possessing small amounts of the marijuana plant, most of Texas has stringent punishments for possession.
The Importance of THC Percentage in Law
Tetrahydrocannabinol, shortened THC, is the main active ingredient of cannabis. It is the THC that provides the psychoactive effects of consuming marijuana. Generally speaking, the weight of the substance in possession determines its legality. However, products with different concentrations of THC can be classified differently. For example, many products derived from the cannabis plant, like CBD oils and hemp products, are completely legal in Texas. Possession of THC oils, on the other hand, has more stringent punishments than possession of the plant.
THC content is generally measured by dry weight, and can be anywhere from <1% to 25%+ occurring in the plant. Under the Compassionate Use Act, Texas’ medical marijuana law, the marijuana used legally for medicinal purposes must be .5% or less THC by dry weight. There is a natural limit in how much THC a natural plant can contain, which is why possession of the plant is classified differently than extracts, oils, and edibles.
In Texas, punishments by weight are as such:
- 2oz or less
- Misdemeanor
- Up to 180 days in prison
- $2,000 fine
- 1-2 ounces
- Misdemeanor
- Up to 1 yr in jail
- $4,000 fine
- Over 4 ounces – 5lbs
- Felony
- 2-10 years in jail
- $10,000 fine
The legal definition of marijuana under the Texas Controllbed Substances Act, Section 481.002(26) refers to the leaves and seeds of the Cannabis Sativa L. Plant. This includes mixtures and compounds made from the seeds and plant. Texas law does not define resin extracted from the plant, stalks (or materials produced from them), or oil or cake made from the seeds.
Vaping vs Smoking
Vaping was heavily marketed as an alternative to cigarettes and a way to slowly quit smoking, but they are very popular with young Americans, especially high schoolers and college-age adults. Many young people never smoke cigarettes, but jump straight to vaping. Vape pens vaporize nicotine directly from an oil instead of burning all the additional ingredients in cigarettes and inhaling the smoke.
Vape pens can also used to vaporize cannabis oil. These oils are derived from an extraction process that concentrates the THC from the plant, increasing potency. Instead of the 9%-30% of THC by dry weight normally found in the plant, the THC content be upwards of 60%.
THC Concentrates are Classified Differently
Under Texas law, THC concentrates, such as hash oil and edibles, are classified differently than their plant form. Possession of any amount of THC concentrates starts as a felony instead of a misdemeanor.
The additional aspect to the punishment for edibles is that the other ingredients adds to the weight considered, which dictates severity of crime. The dilutants in sweets and baked goods like eggs, sugar, gelatin, or flour are counted in the final weight. There may only be a few grams of THC concentrate in a pound of brownies, but it would be counted as a pound and not a few grams.
These products are legal in many other states, such as Colorado, but completely illegal in Texas. Barring the Compassionate Use Act, there is no right legally to possess any amount of any product containing THC in Texas.
Why are they classified differently?
Because of how highly concentrated THC concentrates are, there is less time for a user to assess their level of intoxication or mental condition. The efficiency of THC consumption in these forms is why much smaller amounts are punished much more severely. This includes “vape cartriges,” resin, oil, and wax.
The punishment for THC concentrates by weight is such:
- Possession of less than 1g
- felony
- 180 days-2 years jail time
- $10,000 fine
- Possession of 1g-4g
- Felony
- 2-10 years
- $10,000 fine
- Possession of 4g-400g
- Felony
- 2-20 years jail
- $10,000 fine
- Possession of 400g
- Felony
- 10 years-life
- $50,000 fine
Thank you for reading the legal news blog of The Law Office of Gabriella Young. Contacting an experienced attorney right when you are charged is incredibly important for the wellbeing of your case. We are an Austin, Travis County, and Williamson County criminal defense firm experienced in cannabis and other drug defense cases, and our jail release assistance is available 24/7. We are dedicated to our clients and their futures, and will handle your case with compassion and dedication!