Texas Joint Possession Laws: Shared Drug Possession Explained

What is CBD Oil?

CBD Oil, which is short for cannabidiol oil, is a cannabinoid extract that is alleged to have the health benefits of cannabis (e.g. pain relief, easing of inflammation, anxiety management and the treatment of epilepsy) without the psychoactive effects of marijuana. CBD Oil is sold as a supplement in marijuana dispensaries, nutrition stores, and even as an additive in smoothies. While the popularity of CBD Oil is growing substantially, the product remains unregulated by the U.S. Food and Drug Administration, leading to wide discrepancies in the product's ingredients and quality. The variety of ingredients and compounding methods may have significant ramifications for consumers depending on Federal and state law and the interpretation of those laws by state law and health code enforcement agencies.

Is CBD Oil Legal Under Federal Law?

Yes, if it is produced within federal guidelines.

As of December 20, 2018, the Fed Gov has legalized hemp that has a tetrahydrocannabinol (THC) concentration of no more than 0.3% by removing it from Schedule I of the controlled substances act. States and Indian Tribes may regulate the production of Hemp by submitting a plan to the USDA. This bill also makes hemp producers eligible for the federal crop insurance program and certain USDA research grants.

With the passing of the new 2018 Farm Bill, hemp and hemp-derived products have been officially removed from the purview of the Controlled Substances Act, such that they are no longer subject to Schedule I status. Meaning that so long as CBD is extracted from hemp and completely pure (with less than 0.3% THC on a dry weight basis of THC, something the DEA doubts is possible) and grown by licensed farmers in accordance with state and federal regulations, it is legal as a hemp product.

However, in 2016 the Drug Enforcement Agency released an administrative ruling considering CBD Oil to be a Schedule One drug, comparable to heroin, peyote and LSD, operating on the theory that it is extracted from the same parts of the Cannabis sativa plant that contain THC, the active ingredient of marijuana. CBD consumers and manufacturers assert that CBD can also be extracted from the non-intoxicating parts of the Cannabis sativa plant that produce hemp, however, a recent 9th Circuit decision affirmed the DEA's authority to classify CBD Oil as within their administrative purview.²

For CBD Oil to be considered legal in the Federal system under the DEA's guidelines it must “consist[] solely of parts of the cannabis plant excluded from the CSA definition of marijuana.” In the definition of marijuana given by the Controlled Substances Act, the “mature stalks of such plant, fiber produced from such stalks, oil or . . . any other . . derivative, mixture, or preparation of such mature stalks” are excluded from the definition. Presently the DEA considers an extraction process using only the parts of the cannabis plant that are excluded from the CSA definition of marijuana to be “not practical.” This is because the extraction process used would “diminish any trace amounts of cannabinoids that end up in the finished product.”

Is CBD Oil Illegal Under the Laws of the Various Individual States?

Yes, CBD is legal, but not in all states.

At the state level, CBD Oil is considered legal in the states where marijuana is legal for recreational use (Alaska, California, Colorado, DC, Maine, Massachusetts, Nevada, Oregon, Vermont). Twenty-nine states have made marijuana legal for medical use in various quantities and CBD is also considered legal under those state laws, irrespective of the THC content of the source of the oil. In states that have not decriminalized marijuana, CBD Oil is also likely illegal.

Is CBD Oil Legal In Texas?

NO, unless you fall within the qualifications set by the Compassionate Use Act.

If you are prescribed the use of medical CBD oil and use ‘low-THC” CBD, then the use is legal. Texas has legalized marijuana for medical use only, but only in a very narrow set of circumstances. The Compassionate Use Act of 2015 authorizes the prescription of “low-THC cannabis,” defined as having no more than 0.5% THC for patients diagnosed with intractable epilepsy and entered into the state-maintained “compassionate-use registry.”³ The Act requires prescription by two physicians however, it is currently illegal under federal law for a physician to “prescribe” marijuana. Under a 2000 court ruling, it is legal for physicians to “recommend” marijuana to their patients but the language of the Compassionate Use Act calls for a prescription, setting up a conflict with Federal law.⁴ Additionally, to qualify for the medical use of CBD, the patient must have tried two FDA-approved drugs and found them to be ineffective. There are currently three dispensaries licensed by Texas to sell qualifying products to authorized consumers.

If you do not fall within the qualifications set by the Compassionate Use Act, then possession of CDB oil containing any amount of THC is against Texas law. The State definition of marijuana closely tracks the Federal definition. The Texas Health and Safety Code defines marijuana as “the plant Cannabis sativa . . . and every compound, manufacture, salt, derivative, mixture, or preparation of that plant or its seeds.” The Code excludes “the mature stalks of the plant or fiber produced from the stalks [and] a compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, fiber, oil.” Texas does not currently have legislation allowing for the cultivation of hemp, though industrial hemp derived from the mature stalks of the Cannabis sativa plant may be sold and consumed.

What is the Penalty for Possession of CBD Oil in Texas?

In Texas, if you possess CBD oil with any trace of THC, you could be charged with a Felony for Possession of a Controlled Substance in Penalty Group 2, which (depending on the weight in grams) can carry a range of punishment from 180 days in a state jail facility up to 20+ years in prison and a fine not to exceed $10,000. Several of our clients have been arrested for possessing CBD oil after officers performed a field test and discovered that yielded a positive result for THC.

If the CBD oil does not contain any THC, is it currently a Schedule V substance not in any penalty group. Possession of CBD with no THC can be charged as a Class B Misdemeanor with a punishment range of 0 - 180 days in jail and a fine up to $2,000.

What To Look For In CBD Oil In Texas

CBD Oil made from the mature stalks of the Cannabis sativa plant are likely in conformity with both Federal and Texas State law. Consumers seeking to purchase CBD Oil in Texas should look for a product advertised as being the product of “industrial hemp” or “mature hemp.” Products advertised as containing “THC” or “CBD Oil” should be avoided because of potential conflict with State and Federal laws.

• Texas consumers with intractable epilepsy may seek to join the Compassionate Use Registry and get a prescription for CBD Oil containing less than 0.5% THC from an authorized dispensary.
• Physicians should be mindful that “prescribing” CBD Oil to Texas residents under the Compassionate Use Act may fall into conflict with existing Federal law.
• Retailers that are not one of the three state-authorized dispensaries authorized by the Compassionate Use Act should take care to carry only products that do not advertise themselves as containing CBD Oil but instead focus on being the product of industrial hemp.

Where Can I Purchase CBD Oil with 0% THC?

While there are many CBD oil stores popping up all over Texas, we have found one near our office that sells CBD Oil with 0% THC in it. They test it to confirm the THC content so that you can be sure of what you are getting. Visit Your CBD Store at https://yourcbdstorekeller.com to learn more or purchase their CBD products online. But remember that even though many agencies are not choosing to arrest or prosecute for  zero THC CBD oil, the Tarrant County DA's office is still filing these cases if a person is arrested.

Sources:

1. H.R.2642 - 113th Congress (2013-2014): Agricultural Act of 2014.
2. Hemp Industries Association v. USDEA, No. 17-70162
3. SB339  Texas Compassionate Use Program
4. Conant v. McCaffrey  WL 1281174

Current Marijuana Laws in Texas

Despite having been legalized in other states, possessing even a small amount of marijuana is a crime in Texas. The Texas Health and Safety Code says it is illegal for a person to knowingly or intentionally possess a usable quantity of marijuana. How much marijuana a person has in their possession will affect the level of severity of the offense.

• Up to 2 0z- Class B Misdemeanor, punishable by up to 180 days in jail and up to a $2,000 fine
• 2oz to 4oz- Class A misdemeanor, punishable by up to 1 year in jail and a $4,000 fine
• 4oz to 5lbs- State Jail Felony, punishable by 180 days to 2 years in jail and up to a $10,000 fine
• 5lbs to 50lbs- 3rd Degree Felony, punishable by 2 to 10 years in jail and up to a $10,000 fine
• 50lbs to 2000lbs- 2nd Degree Felony, punishable by 2 to 20 years in jail and up to a $10,000 fine
• More than 2000lbs- 1st Degree Felony, punishable by 2 to 99 years in jail and up to a $50,000 fine

Proposed Texas Laws Relating to Marijuana

Texas failed to pass any new marijuana legislation in 2017, but proponents of legalized marijuana are hopeful for the 2019 legislative session. House Bill 2107 was proposed during the 2017 session, co-authored by 78 House members. The bill would have expanded the Compassionate Use Act to include Texans dealing with medical issues other than intractable epilepsy. While the bill narrowly missed being brought to a vote, it showed there was bipartisan support for such a bill, and legislators remain optimistic marijuana reform will happen in 2019.

Medical Marijuana in Texas

The Texas Compassionate Use Act was signed by Governor Greg Abbot in 2015. The Act allows for individuals with intractable epilepsy to have access to CBD oil, a low THC cannabis oil. The bill prohibits smoking marijuana. Critics of the law say it is unworkable, as it requires a doctor to “prescribe” marijuana rather than recommend it as they do in other states where medical marijuana is legal. Under current federal law, a doctor “prescribing” marijuana could be open to sanctions, while one recommending the use is not. Another issue is that the ratio of THC to CBD that is allowed under the law is not potent enough to help some patients. There is potential for changes to be made to the Act during this legislative session, with proponents of the Act looking to broaden the scope and make access easier for patients.

THC Oil in Texas (Wax, Dabs, Marijuana Concentrate)

Possessing THC (tetrahydrocannabinol) oil in Texas is considered a more serious crime than simply possessing marijuana. Over the last few years, vaping THC oil, which is a concentrated version of the mind-altering component of marijuana, has become popular. Under Texas law, THC oil or wax is considered a concentrate and possessing it is a felony criminal offense.

• Less than 1 Gram- State Jail Felony
• 1 Gram to 4 Grams- Third Degree Felony
• 4 to 400 Grams- Second Degree Felony
• 400 grams or more - First Degree Felony

The law considers THC oil and wax to be in a different penalty group that marijuana, due to the higher level of THC, and consequences are much harsher. So while a typical small amount of marijuana could be punishable as a misdemeanor, even a very small amount of THC oil can be punishable as a felony. This is a common misconception that we often see in our THC oil cases. The user believes that a low amount is a misdemeanor, much like a low amount of marijuana. Not so. Every THC oil case is a felony.

Edible THC in Texas

The use of THC oil in edibles can be very serious. When weighing the amount of a controlled substance, the Texas Health and Safety Code includes all adulterants and dilutants in the total weight. Popular THC laced edibles like gummy candy and brownies will be weighed in their entirety, and can result in very serious felony charges.

CBD Oil in Texas

Cannabidiol oil (CBD Oil) is made from cannabis, but is non-psychoactive. CBD oil that is made from industrial hemp is currently legal in Texas. Recently, shops selling CBD oil products have been popping up all over the metroplex, with promises the product can relieve pain and anxiety. The Texas Department of State Health Services has begun to crack down on retailers selling food products made with CBD oil, claiming they have the power to regulate any food product that contains CBD oil.

But not all CBD oil is legal. If there is any trace of THC in the CBD oil, the user could face prosecution for misdemeanor Possession of a Controlled Substance (Not in a Penalty Group).

Synthetic Marijuana in Texas

K2, or Spice, is a synthetic form of marijuana that is created by spraying natural herbs with chemicals meant to mimic the effects of marijuana. Synthetic Marijuana is illegal in Texas, and carries the same punishment as marijuana.

Selective Prosecution for Marijuana Offenses in Texas

Several counties across the state, including Dallas, Bexar, and Harris, have implemented a marijuana cite and release program whereby folks are not being arrested for low-level possession charges. Other counties have diversion programs for first-time or low level offenders. You should check with a knowledgable attorney in your local area to learn more about the diversion programs available.

In Tarrant County, depending on the circumstances of the case, a marijuana offender may qualify for the Deferred Prosecution Program (DPP) or the First Offender Drug Program (FODP). Again, you should check with an attorney to determine whether you might be eligible to participate in either program.

Conclusion

Regardless of whether you disagree with what the law should be in regard to marijuana in Texas, it is currently illegal to use or possess. If you are arrested for possession of marijuana, you may qualify for a diversion program that will ultimately allow you to get your record fully expunged. Contact one of our attorneys today if you have pending marijuana charges in Tarrant County. We will be happy to discuss your options and defend your case.

The Case of the Not Too "Wise" Bus Passenger

United States v. Wise, 877 F.3d 209 (5th Cir. TX 2017)

FACTS: In this case, police officers were conducting bus interdictions at a Greyhound bus stop. After a certain bus stopped, the driver got off the bus and the officers approached him requesting consent to search the passenger cabin of the bus. The bus driver consented to a search and two experienced narcotics officers in plain clothes boarded the bus. The officers did not block the exit or otherwise obstruct any of the passengers from departing the bus. One officer walked to the back of the bus while the other officer remained at the front.

The officer at the front of the bus noticed a man who was pretending to be asleep. The officer found this suspicious, because in his experience, criminals on buses often pretended to be asleep to avoid police contact. The officer walked past the "sleeping" man and turned around. The sleeping man (named Morris Wise) then turned to look back at officer, revealing that he was not asleep after all. The officer then approached Wise (now awake) and asked to see his bus ticket. Wise gave the officer a bus ticket, bearing the name "James Smith." The officer had a hunch that James Smith was a fake name. The officer then asked Wise if he had any luggage with him on the bus. Wise said yes and motioned to the luggage rack directly above his head.

Wise then gave the officers consent to search the duffle bag in the overhead compartment. The officers did not find any contraband in the duffle bag. The officers also noticed a backpack near Wise and asked if the backpack belonged to him. Wise denied ownership of the backpack. The officers then asked the other passengers about the backpack and no one claimed it, so the officers removed the backpack at the bus driver's request.

Outside the bus, a trained police canine alerted to the backpack. The officers then cut a small lock off the backpack, searched it, and found seven brick-type packages that appeared to contain cocaine.

The officers then went back onto the bus and asked Wise if he would mind getting off the bus to speak to the officers. Wise complied with the officers' request and got off the bus. The officers asked Wise if he had any weapons, which he denied that he had any weapons, and then they asked him to empty his pockets.

From his pockets, Wise gave the officers his ID card with bearing the name "Morris Wise" and a lanyard with several keys attached to it. Not surprisingly, one of the key opened the lock that the officers had to cut off of the backpack (that Wise said was not his). The officer then arrested Wise, and the government charged him with several drug-related offenses.

Motion to Suppress the Search as the Fruits on an Illegal "Checkpoint Stop"

Wise filed a motion to suppress the evidence as a violation of his 4th amendment right against unreasonable searched and seizures. The district court held that the officers' conduct in searching the bus constituted an unconstitutional checkpoint stop. In addition, the district court held that the bus driver did not voluntarily consent to the officers' search of the luggage compartment where the backpack was located. As a result, the district court suppressed all evidence the officers seized after the stop.

The government appealed to the Fifth Circuit Court of Appeals.

First, the court held that the district court incorrectly characterized the officers' bus interdiction as an unconstitutional checkpoint. The court noted that the Supreme Court's cases involving checkpoints involve roadblocks or other types of conduct where the government initiates a stop to interact with motorists. In this case, the officers did not require the bus driver to stop at the station. Instead, the driver made the scheduled stop as required by his employer, Greyhound. In addition, the officers only approached the driver after he had disembarked from the bus, and the driver voluntarily agreed to speak with them. The court concluded that the interaction between the officers and the driver was better characterized as a "bus interdiction."

Second, although Wise had a reasonable expectation of privacy in his luggage, the court held that as a passenger, Wise did not have a reasonable expectation of privacy in the luggage compartment of the commercial bus. As a result, the court concluded that Wise had no standing to challenge the officers' search of that compartment, to which the bus driver consented.

Third, the court held that the officers did not seize Wise, within the meaning of the Fourth Amendment, when they approached him, asked to see his identification, and requested his consent to search his luggage. Instead, the court concluded that Wise's interaction with the officers was a consensual encounter because a reasonable person in Wise's position would have felt free to decline the officers' requests or otherwise terminate the encounter.

Finally, the court held that Wise voluntarily answered the officer's questions, voluntarily emptied his pockets, and voluntarily gave the officer his identification and keys.

Can a Defendant Be Convicted for Using a "Fraudulent Prescription Form" When They Only Altered the Information on an Otherwise Valid Prescription?

Avery v. State, 359 S.W. 3d 230 (2012)

In 2012, the Texas Court of Criminal Appeals released an opinion concerning whether a defendant may be convicted under Texas Health and Safety Code Section 481.129(a)(5)(B) for using a "fraudulent prescription form" when the facts showed that the defendant altered the dosage information on an otherwise valid prescription that had been written by the defendant's physician.

The Facts — The Trial Court Denied Defendant’s Motion and Defendant was Convicted for Using a Fraudulent Prescription Form

In 2009, Defendant received a prescription for forty 2.5-milligram Lortab pills from her doctor after she complained of knee and back pain. Before dropping off the prescription at the pharmacy, Defendant attempted to scribble out the “2.5” and make it look like “7.5.” The pharmacist became suspicious and called the doctor’s office to confirm the prescription. The nurse confirmed the Defendant’s prescription was for 2.5-milligram pills and the pharmacist called the store security, who then contacted police.

During trial in which the defendant had been charged with using a fraudulent prescription form, Defendant moved for a directed verdict of acquittal. Defendant argued that, while there was evidence of forgery, there was no evidence that she used a "fraudulent prescription form" as alleged in the indictment. Defendant further argued that the prescription form was not fraudulent, but only that what the doctor wrote was altered. Therefore, there was no evidence that Defendant committed fraud by using a fraudulent prescription form.

However, the State responded that even by altering an otherwise legitimate prescription form, as Defendant did when attempting to change the dosage, Defendant had created a fraudulent prescription form. The trial court denied Defendant’s motion and the jury found Defendant guilty. Defendant was sentenced of 25 years’ confinement and a $1,500 fine.

The Court of Appeals Vacated the Trial Court’s Judgment and Entered a Verdict of Acquittal, Holding Defendant’s Actions More Closely Resembled Actions in a Different Subsection of Statute Instead of that Listed in the Indictment

Section 481.129 of the Texas Health and Safety Code governs the offense of fraud under the Texas Controlled Substances Act. According to Section 481.129(a)(5)(A), a person commits an offense if they possesses, obtains, or attempts to possess a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge.

Section 481.129(a)(5)(B) differs slightly in that a person commits the offense if they possess or attempt to possess a controlled substance through the use of a fraudulent prescription form.

Section 481.075 of the Texas Health and Safety Code governs the “Official Prescription Program,” which prescribers must follow in order to prescribe Schedule II Controlled Substances. This section describes the elements of an “official prescription form” as the controlled substance prescribed as well as the quantity of that controlled substance. The State argued that since the prescriber’s written words are part of the “official prescription form,” the Defendant turned the entire document into a “fraudulent prescription form” when she altered the written words.

The Court of Appeals, however, accepted neither party’s argument in full and believed its job was to determine whether Defendant’s actions were “more” like the “misrepresentation, fraud, [or] forgery” or like the “use of a fraudulent prescription form.” The Court of Appeals determined that the action may fall under either description, but cannot fall under both. Thus, the Court of Appeals ruled that Defendant’s actions—altering the writing—more closely resembled “forgery” than the “use of a fraudulent prescription form.”

Accordingly, the Court of Appeals vacated the trial court’s judgment and entered a verdict of acquittal.

The Court of Criminal Appeals Affirmed the COA, Holding that Defendant’s Alteration of Information on the Legitimate Prescription Violated a Different Statute than that for which Indicted

The Court of Criminal Appeals first addressed factual matters in the Court of Appeals’s opinion. Beginning with discussing the original indictment, it did not specify which Schedule of controlled substance Lortab is on. The Court of Appeals identified it is a Schedule II controlled substance, but also cited to definitions that describe Lortab as a combination drug that may be Schedule III. The pharmacist’s testimony identified Defendant’s Lortab as a Schedule III controlled substance mixture.

Secondly, as a result of a different schedule drug, Section 481.075 would not be applicable as it only applies to Schedule II controlled substances and does not mention Schedule III substances. Further, there was nothing in the record that led the Court of Criminal Appeals to believe that Defendant used an “official prescription form.”

The Court of Criminal Appeals analyzed how the Court of Appeals discussed the history and intent of the statutes, and determined that, based on statutory inferences and common language, “prescription form” refers to a pre-printed form that is used to write information on it. Further, the Legislature intended to create a legal distinction between completed prescriptions and the prescription forms.

After analyzing the statute applied in the Court of Appeals, the Court of Criminal Appeals determined that Subsection (B) of Section 481.129(a)(5) only governs the use of a fraudulent prescription form. Further, the Court of Criminal Appeals ruled that the writing on the form is not an element of that offense.

In the case at hand, the State originally charged Defendant with attempting to obtain a controlled substance “through use of a fraudulent prescription form.” The evidence presented by the State adduced that Defendant fraudulently altered the information written on the legitimate prescription form. Although the evidence would have supported a conviction had Defendant been charged under another statute, the evidence does not support a conviction for the offense Defefndant was charged with.

Although the Court of Criminal Appeals disagrees with the reasoning of the Court of Appeals, it agrees in its judgment and affirms the Court of Appeals’s judgment of acquittal.

How Long Can an Officer Wait to Pull a Vehicle Over After Observing a Traffic Violation?

United States v. Zuniga (US Court of Appeals, 5th Cir. 2017)

In this case, a San Antonio police detective, who was working with an informant, suspected that Appellant Zuniga was transporting methamphetamine in his vehicle and followed it. The detective witnessed the driver of the vehicle fail to engage the turn-signal as required. He did not pull the vehicle over at that time, but radioed the traffic violation to other officers. Approximately fifteen minutes later, an officer who had received the radio dispatch but had not witnessed the turn-signal violation, stopped the vehicle. During the stop, the officer encountered Appellant, who was riding in the passenger seat, and his girlfriend, who was driving the vehicle. The officer arrested Appellant on outstanding warrants and his girlfriend for driving without a valid driver’s license.

The arresting officer conducted a search of Appellant incident to arrest and found methamphetamine on his person. The officer also searched Zuniga’s car and found a backpack containing methamphetamine, a handgun, and other evidence related to drug trafficking.

As a result, the federal government charged Appellant with several drug-related offenses.

Motion to Suppress for Unreasonable Traffic Delay

Appellant filed a motion to suppress the evidence seized during the stop, arguing that the fifteen-minute delay in conducting the stop for the turn-signal violation rendered the information provided by the detective who observed the violation stale.

The trial court denied the motion to suppress, holding that the delay in conducting the stop was not enough to render the information stale or the stop unlawful. The court did not state a specific time limitation to which officers must adhere when conducting a traffic stop. Instead, the court stressed that stops following traffic violations must be reasonable in light of the circumstances. In this case, the court found that the fifteen-minute delay was reasonable. As soon as the officer observed the turn-signal violation, he immediately relayed this information to other officers, although none of those officers were in position to stop the vehicle at that time.

Collective Knowledge Doctrine Allows an Officer to Make a Stop for a Violation He Did Not Observe

The trial court further held that the collective knowledge doctrine allowed the arresting officer to lawfully stop the vehicle even though he did not personally observe the traffic violation. The collective knowledge doctrine allows an officer, who does not observe a criminal (or traffic) violation, to conduct a stop when that officer is acting at the request of another officer who actually did observe the violation. Here, the detective who observed the turn-signal violation communicated this information to the traffic officer who ultimately stopped the vehicle; therefore, the detective’s knowledge transferred to the officer who conducted the stop and made the arrest.

The 5th Circuit upheld the search and the conviction, holding that reasonable suspicion to stop the vehicle continued to exist despite the 15-minute lapse between the original observation of the traffic offense and the stop. The court explained:

“We make no attempt to articulate a specific time limitation to which officers must adhere in effecting a stop following a traffic violation. Rather, we stress that, consistent with our holdings in similar contexts, stops following transportation violations must be reasonable in light of the circumstances. See, e.g., United States v. Robinson, 741 F.3d 588, 598 (5th Cir. 2014) (emphasizing that “[s]tale information cannot be used to establish probable cause”). To reiterate, we hold only that the elapsed time between an observed violation and any subsequent stop must be reasonable upon consideration of the totality of the circumstances.”