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People cqn srill get arrested in texas for cbd oil

Is CBD Oil Legal in Texas? | Prosecution Depends on Location (2020)

People think since you can purchase CBD at almost any corner store in Texas, that it must be legal. Even elected district attorneys have different opinions about the legality of CBD oil in Texas. In this article we’re going to take a look at the circumstances under which CBD oil is legal and the arguments some prosecutors are making to charge individuals who possess CBD oil in Texas.

The cannabis plant contains over 100 cannabinoids. THC and CBD are the two most commonly discussed cannabinoids. Legislators at both the state and federal level have started recognizing the therapeutic value of CBD and CBD oils, although the legal landscape surrounding CBD oils is far from straightforward for Texans who want use it. Some of the confusion surrounding CBD stems from recent legalization at the federal level and very limited legalization in Texas.

Texas Governor Signs Law Legalizing Hemp Production, CBD

On June 10, 2019, Governor Greg Abbot signed a new law making CBD legal in Texas as long as it contains .3 percent or less THC. The law, which was House Bill 1325, went into effect on September 1, 2019, enacted the following:

  • Defined hemp under the Agriculture Code as the cannabis plant and all derivates, extracts, cannabinoid, isomers, etc. that has no more that 0.3 percent THC on a dry weight basis.
  • Required a memo of understanding between the Department of Agriculture and Department of State Health Services requiring DSHS to cooperate with the Department of Agriculture in developing a hemp production plan.
  • Amended the Health and Safety Code to specifically exclude hemp from being a controlled substance. It also specifically exclude THC found in hemp.
  • Excluded hemp from the definition of marijuana.

Will You Be Prosecuted for Possession of CBD Oil?

Whether you will be prosecuted for possession of CBD oil in Texas depends entirely upon where you are located. In North Texas, Denton County is not prosecuting CBD oil only cases, Dallas County is “not aggressively prosecuting” CBD oil cases, and the Collin County District Attorney is still deciding. Tarrant County, on the other hand, is prosecuting CBD oil cases. As we will discuss later, officials can chose to prosecute CBD oil that contains THC for Possession of a Penalty Group 2 Substance in Texas. While all elected prosecutors understand that theory of prosecution, the reality is that CBD oils usually contain less than .3 percent of THC, if they contain any at all.

Tarrant County’s position has been to prosecute cases with THC. Additionally, the First Assistant District Attorney recently stated to a local news organization that Tarrant County will prosecute possession of CBD oil not containing THC as a misdemeanor offense. (More on this later.)

Where is CBD Oil Legal in Texas?

CBD Oil is legal everywhere, as long as it falls under the .3 percent threshold.

Related Resources:

Is CBD Oil Illegal Federally?

CBD is no longer illegal under federal law. On January 1, 2019 – with the passage of the Agricultural Improvement Act of 2018 (also known as the Farm Bill Act) – it became legal to grow or possess hemp under federal law as long as it has less than .3 percent THC.

CBD oil is a derivative of the hemp plant, therefore making it legal under federal law as long as it has less than .3 percent THC.

It’s important to point out that cannabis products (hemp-derived or otherwise) marketed with a claim of therapeutic benefit must be approved by the FDA. (Source: FDA)

CBD Prosecution Texas

Prosecutors in some jurisdictions, like Tarrant County, will have CBD tested for the presence of THC. If there is any detectable amount of THC, they are filing these cases as Possession of a Controlled Substance – Penalty Group 2 under Texas Health and Safety Code 481.103 and 481.116.

Like marijuana, prosecution based on possession of CBD products in Texas is largely a function of where you are, not what you possess.

We made an open records request to the Tarrant County District Attorney asking for the number of CBD oil cases that were prosecuted by her office.

While we continue to analyze those numbers, we did obtain information from the Office of Court Administrations that shows the effect an elected District Attorney can have on the cases pursued by the office.

For example, prosecution of misdemeanor marijuana cases in Tarrant County has increased seven times the state average since the beginning of the current district attorney’s administration, exceeding even more conservative neighboring jurisdictions. Not to mention, both the Republican governor and the Texas Republican platform support decriminalization of marijuana.

CBD Oil as a Misdemeanor

The Texas Controlled Substances Act is codified under Texas Health and Safety Code Chapter 481. Health and Safety Code Section 481.032 says that the Commissioner of State Health Services is to set out what substances are deemed Controlled Substances in Texas under Schedules I through V. Chapter 481.034 retains the right for the legislature to remove substances from the Controlled Substance list. In May of 2017, the Texas Commissioner of the Department of State Health Services, Dr. John Hellerstedt, ordered “that the substance Marijuana Extract, meaning an extract containing on or more cannabinoids that has been derived from any plant of the genus Cannabis, other than the separated resin (whether crude or purified) obtained from the plant) into Schedule I.Health and Safety Code Section 481.119(b) makes possession of a “controlled substance listed in a schedule by an action of the commissioner…but not listed in a penalty group” a Class B misdemeanor offense.

Theories for CBD Prosecution in Texas

Possession of CBD Oil is specifically distinguished from the possession of marijuana in Texas. Texas Health and Safety Code Section 481.002 excludes oils and resins from the definition of marijuana.

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If you go through Chapter 481 of the Health and Safety Code, you will find substances like THC (Tetrahydrocannabinol) and dronabinol (synthetic marijuana). What you won’t find in Chapter 481 is “cannabidol.” You also won’t find any of the other descriptors of cannabidol found on the Open Chemistry Database maintained by the National Center for Biotechnology Information or in any penalty group in Texas.

As of May 2017, however, you will find the addition of “Marihuana Extract” in the Texas Register [PDF] (not the Health and Safety Code) by the order [PDF] of the Commissioner of the Department of State Health Services. That order is what the Tarrant County District Attorney is using as a basis to prosecute CBD oil possession cases at the misdemeanor level.

Prosecution of CBD Oil in Tarrant County

An NBC 5 investigation first brought the prosecution of CBD oil in Tarrant County to light. In an interview with NBC 5, the Tarrant County First Assistant District Attorney said Tarrant County is “going to enforce the law.” When he says that any amount of CBD oil is illegal – and a misdemeanor offense if it does not contain THC – the law he is referring to is not one passed by Texas legislators. Texas legislators have not specifically made cannibidiol a controlled substance. A medical doctor, who serves as the DSHS Commissioner, added cannibidiol to the list of controlled substances.

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After the NBC5 investigation broke and the interview aired, the elected District Attorney released a statement that she has “not spent and do[es] not expect to spend significant resources on cases involving CBD oil.”

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We are unaware of any other district attorney in Texas that is prosecuting misdemeanor CBD oil under this theory. According to the NBC 5 investigation, no other county in North Texas is prosecuting CBD oil possession as aggressively as Tarrant County.

Have Recent Amendments Made CBD Oil Legal?

Effective April 5, 2019, Dr. Hellerstedt amended the listing for marijuana and THC to fall in line with the federal Farm Bill Act. [PDF]

The changes are as follows: First, “[t]he term marihuana does not include hemp as defined in section 297 A( I) of the Agricultural Marketing Act of l 946.” Second, THC no longer includes THC contained in “hemp (as defined under section 297A( I) of the Agricultural Marketing Act of 1946)”However, “marijuana extract” still means “an extract containing one or more cannabinoids that has been derived from any plant of the genus Cannabis other than the separated resin (whether crude or purified) obtained from the plant.”As a result, the April 5, 2019 amendment only added more confusion for citizens, law enforcement agents, and prosecutors across the state. Additionally, this amendment is not going to keep Tarrant County from continuing to file charges.

Felony Prosecution of CBD Oil in Tarrant County

In Tarrant County, if the CBD contains THC, the case is the filed as a felony as a Penalty Group 2 illegal substance. This penalty group is generally reserved for hallucinogens, their salts, isomers, and salts of isomers.

What most people don’t realize is the person charged with Possession of a Penalty Group 2 substance is charged with the entire weight of the substance, including “adulterants or dilutants.” In other words, a small eye dropper bottle of CBD oil with half an ounce of liquid could contain a second-degree felony amount of drugs. That means the person is facing 2 to 20 years in prison and up to a $10,000.

Individuals possessing CBD oil, which is sold and marketed as being free of any psychoactive ingredients, are being punished as though it were equivalent to PCP, MDMA, or Ecstasy, or other hallucinogenic Penalty Group 2 substances.

What is CBD Oil?

CBD is short for Cannabidiol. Like THC, it is one of 85 cannabinoids present in the cannabis plant. CBD Oil contains high levels of CBD and trace amounts of THC. The lack of high levels of THC makes CBD Oils non-psychoactive.

What is THC?

THC is short for Tetrahydrocannabinol. This is one of many chemical compounds found in cannabis. THC is responsible for the psychological and euphoric effects of the drug. In other words, it is what makes people feel “high” when they smoke or ingest marijuana.

How is CBD Different From THC?

The short answer is, unlike THC, CBD is not psychotropic. Consequently, it doesn’t result in a euphoric high the way THC does.

The longer answer is far more interesting. It is important to first distinguish marijuana from hemp. Scientifically, both marijuana and hemp come from the “cannabis sativa” plant, according to the USDA. Marijuana, though in the same scientific family as hemp, is a much smaller plant. Hemp, the taller and more fibrous version of the sativa plant has a long history in the United States. In fact, George Washington grew hemp on Mount Vernon.

Over years of breeding, the cannabis plant was developed to have high levels of THC. It is this breeding to elevate THC levels that has spurred the illegal marijuana market. Because CBD comes from an entirely different plant than marijuana, its chemical properties are different.

THC is found in large quantities in cannabis, or what most people think of as the marijuana plant. Unlike cannabis, or marijuana, hemp contains low concentrations of THC. CBD Oils are generally made from the hemp plant so they contain high levels of CBD and trace levels of THC. As a result, CBD provides a less controversial alternative to THC for health benefits.

What is the Compassionate Use Act?

In 2015, Governor Greg Abbott signed into law what’s known as the Texas Compassionate Use Act, which allows the use of CBD oils to treat seizures caused by intractable epilepsy. The Act legalizes oils containing CBD for treatment of epilepsy, as well as other chronic medical conditions for those who have not responded positively to use of federally approved medications.

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The Act authorizes the Department of Public Safety to license dispensing organizations, which function similar to compounding pharmacies. Only neurologists and epileptologists are able to offer prescriptions for CBD oil. While the law was implemented in 2015, access to CBD was delayed until 2017 to allow for additional time to create a system to ensure that distribution is confined to genuine medical necessity along with a detailed registry identifying doctors and dispensaries.

Selling CBD Oils without FDA Approval

Under current federal law, unapproved sellers of CBD Oils who describe the medical benefits of CBD Oils should at the very least expect to get a Cease and Desist letter from the FDA with language along the lines of:

Your product is not generally recognized as safe and effective for the referenced uses and, therefore, the product is a “new drug” under section 201(p) of the Act [21 U.S.C. § 321(p)]. New drugs may not be legally introduced or delivered for introduction into interstate commerce without prior approval from the FDA, as described in section 505(a) of the Act [21 U.S.C. § 355(a)]; see also section 301(d) of the Act [21 U.S.C. § 331(d)]. FDA approves a new drug on the basis of scientific data submitted by a drug sponsor to demonstrate that the drug is safe and effective.

Furthermore, your product is offered for conditions that are not amenable to self-diagnosis and treatment by individuals who are not medical practitioners; therefore, adequate directions for use cannot be written so that a layperson can use this drug safely for its intended purposes. Thus, ______ is misbranded within the meaning of section 502(f)(1) of the Act, in that its labeling fails to bear adequate directions for use [21 U.S.C. § 352(f)(1)]. The introduction of a misbranded drug into interstate commerce is a violation of section 301(a) of the Act [21 U.S.C. § 331(a)].

What Can CBD Oil be Prescribed for in Texas?

Studies show CBD oil has promise in the following areas: anxiety relief, anti-seizure, and pain relief.

However, in Texas, the only approved treatment at this time or the reduction or elimination of seizures. Notably, Florida passed a similar law in 2014, but in 2016, voters amended the law to allow for full THC forms of cannabis for those suffering from a broader variety of medical conditions, such as PTSD, MS, cancer, and HIV. Texas does not allow CBD oil for Parkinson’s patients.

In May of 2017, the Texas Department of Public Safety awarded licenses to produce, process, and dispense CBD oil to three companies. These companies, Cansortium Texas, Compassionate Cultivation, and Surterra Texas, each pay a licensing fee in order to operate facilities to produce and dispense CBD oils under the Compassionate Use Act.

Are THC Oils and Waxes Legal in Texas?

No. As of August 2017, possessing THC oil is not only a crime but also considered a more serious crime than possessing marijuana in its traditional form. In Texas, it is a felony to possess THC oil or wax. The seriousness of the felony varies based on the amount of THC oil possessed. For example, possession of less than one gram of THC oil is a state jail felony that is punishable by six months to two years in a state jail facility and a fine of up to $10,000.

Possessing one to four grams of THC oil is a third-degree felony, punishable by 2 to 10 years in prison and a fine of up to $10,000.

Possession of four to 400 grams of THC oil or wax is a second-degree felony. In Texas, a second-degree felony is punishable by 2 to 20 years in prison and a fine of up to $10,000.

Finally, possession of more than 400 grams of THC oil or THC wax is classified as a first-degree felony. This is the most serious felony for which someone can be charged for possessing THC oil or wax. This crime is punishable by 5 to 99 years in prison and up to a $10,000 fine.

Changes in Texas Law

House Bill 2107 was brought during the 2017 legislative session with a number of vocal supporters. The bill sought to remove the “low THC” restriction and amend the law to allow for “medicinal marijuana.” It also sought to expand the types of conditions that can be treated with cannabis by including post-traumatic stress disorder and terminal cancer. Finally, the bill sought to modify the language, from requiring a doctor’s prescription to requiring a doctor’s recommendation. This change intended to address concerns about the legality of physicians prescribing something prohibited by federal law. Despite having 77 sponsors and co-sponsors, 29 of whom were Republican, the bill died in committee. Given strong support, as well as national trends, changes in Texas law are likely to occur in the future.

Contact Us

The complicated nature of the laws governing CBD oils makes the possession of CBD oil very defensible, especially if the CDB oil has no detectable amount of THC. If you have been arrested for an offense arising from the possession of CBD oil in North Texas, contact us at (817) 203-2220. You can also contact us online.

Frequently Asked Questions on Marijuana Crimes in Texas

No. Marijuana, or Cannabis sativa (L.) is still illegal to possess in Texas. However, in June of this year, the Texas legislature carved out an exception to the definition of marijuana. As long as the tetrahydrocannabinol (THC) concentration is not more than 0.3%, based on a dry weight basis, the plant is considered “hemp,” which is legal to possess in Texas. However, it is still illegal to possess any substance other than hemp that contains any amount of THC, such as gummies, wax, and vape pen cartridges.

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Is CBD legal in Texas?

Yes. Cannabidiol (CBD) oil is legal in Texas. However, CBD products are not currently being thoroughly monitored or tested by the Federal Drug Administration, so there is very little quality control as to what actual ingredients are contained in CBD products. It is therefore possible that CBD products could actually contain THC, making them illegal under Texas law, so caution is recommended in purchasing them.

Is medical marijuana legal in Texas?

Yes, but only in certain cases. In the proper circumstances, a properly qualified medical professional can prescribe low-THC cannabis (not more than 0.5% THC by weight) for a permanent Texas resident with the following conditions:

  • Epilepsy
  • A seizure disorder
  • Multiple Sclerosis
  • Spasticity
  • Amyotrophic Lateral Sclerosis
  • Autism
  • Terminal cancer
  • An incurable neurodegenerative disease
Can I be arrested in Texas if I bought marijuana in another state where it’s legal like Colorado?

Yes. Just because marijuana or THC products may be legal in other states, you are not able to legally bring them into Texas.

We have written extensively about the risk of driving marijuana or THC containing edibles from Colorado into Texas.

Is Texas going to legalize marijuana?

It is probably inevitable that Texas will follow the decriminalization trend spreading across the rest of the country, but based upon the conservative nature of this part of the world, it may well take longer than most states.

Definitions & Legislation

What is decriminalization?

Decriminalization is simply the action or process of ceasing to treat something as illegal or a criminal offense.

Are cannabis, marijuana, and weed the same thing in the eyes of the law?

Yes. Marijuana and “weed” are the same thing as cannabis, as long as the THC concentration is over 0.3% based upon dry weight.

Is there a legal THC amount in Texas?

It is only legal to possess Cannabis sativa (L.), better known as hemp, with a THC concentration of less than 0.3% THC, as determined by dry weight. Possession of any other substance containing THC is still illegal in Texas.

What is cite-and-release and does it apply to where I live?

The Texas Department of Public Safety (“DPS”) has taken the position that if a person is caught with less than four ounces of suspected marijuana, that person is to be given a citation and released, with the understanding that a later court appearance will be required, and the person will be prosecuted as if an arrest had actually occurred. However, this “cite and release” policy only applies to people who reside in the same county the alleged offense occurred in. If you are out of your county, you are subject to arrest.

Also, DPS gives consideration to the wishes of the prosecutors in their jurisdictions. If a particular prosecutor wants everyone arrested, DPS will honor that request. In those counties, everyone caught with marijuana will still be arrested.

Other individual jurisdictions have their own policies regarding whether to cite and release alleged marijuana violators. You should check with your local law enforcement agency to determine what policy you are subject to.

What is Texas House Bill 3703?

House Bill 3703 provides protection for a student who has been legally prescribed medical cannabis. Additionally, it establishes protection for those that produce, transport or otherwise handle medical marijuana in Texas. The bill also provides for the establishment of medical cannabis research programs and dispensaries. Qualifications for prescribing physicians are also established.

What is Texas House Bill 63?

House Bill 63 was an effort to reduce the initial penalty for possession of an ounce or less of marijuana to a Class C misdemeanor. The bill passed the Texas House 103-42, but it died in the Senate. Consequently, possession of any amount of marijuana remains an offense punishable by up to 180 days in jail.

What is the Texas hemp bill (House Bill 1325) and does it make it legal to possess marijuana?

House Bill 1325 gives people the ability to cultivate and possess hemp, which is defined as Cannabis sativa (L.) having a concentration of less than 0.3% THC, as determined by dry weight. All other cannabis with a concentration of more than 0.3% is still considered to be marijuana and is still illegal to possess in Texas.

Is possessing marijuana considered a felony in Texas?

Yes. Possession of more 2-4 ounces of marijuana in a Drug Free Zone, or possession of more than 4 ounces of marijuana in any circumstance is a felony offense in Texas.

Is there a legal difference between getting caught with marijuana edibles, flowers, or concentrated oils?

In Texas, possession of marijuana itself is classified by weight, and any amount of less than four ounces is normally a misdemeanor. HOWEVER, possession of any other substance that contains THC is a FELONY, no matter the weight. A single gummie that contains THC is a state jail felony and carries a potential punishment of two years in jail, while more than four grams can result in a prison sentence of up to twenty years.

What can I do if I want to help reform marijuana laws in Texas? What is Texas Norml?

If you want to change the laws regarding marijuana in Texas, you need to make your voice heard with your local representative, either in person, by phone, by email or any other method that you can think of. You can also join and support activist organizations that share your views, such as Texas Norml, the Austin chapter for the National Organization for the Reform of Marijuana Laws.