In Oregon, this is a 1/4 pound of medicine. In Texas, this is a 2nd degree felony worthy of 2-20 years in prison.
We reported about a California Man Set to Be Extradited to Texas to Face Marijuana Charge this week. In the story, the man is using cannabis for medical purposes with his doctor’s recommendation, all legal in California. But he visited Texas and took with him 1/4 oz of marijuana and 1/2 oz of hashish. We reported the man is now facing 5-99 years in a Texas prison.
This led an concerned reader to look up our State Laws page for Texas, which reads:
| Possession | Crime | Incarceration | Fine |
| 2 oz or less* | class B misdemeanor | 180 days | $2,000 |
| 2 to 4 oz* | class A misdemeanor | 1 year | $4,000 |
| 4 oz to 1 lb* | state jail felony | 180 days – 2 years | $10,000 |
| 1 to 5 lbs | state jail felony | 180 days – 2 years | $10,000 |
| 5 to 50 lbs | felony of the third degree | 2 – 10 years | $10,000 |
| 50 to 2,000 lbs | felony of the second degree | 2 – 20 years | $10,000 |
| More than 2,000 lbs | felony | 5 – 99 years | $50,000 |
| Sale | Crime | Incarceration | Fine |
| Gift of 1/4 oz or less | class B misdemeanor | 180 days | $2,000 |
| Sale of 1/4 oz or less | class A misdemeanor |
1 year
|
$4,000 |
| 1/4 oz to 5 lbs | state jail felony |
180 days – 2 years
|
$10,000 |
| 5 to 50 lbs | felony of the second degree | 2 – 20 years | $10,000 |
| 50 to 2,000 lbs | felony of the first degree | 5 – 99 years | $10,000 |
| 2,000 lbs or more | felony | MMS 10 – 99 years | $100,000 |
| To a minor | felony | 2 – 20 years | $10,000 |
| Within 1,000 feet of a school or within 300 feet of specified areas | misdemeanor or felony | increased penalty | increased penalty |
“So,” our reader asks, “Texas is saying that you can sell a ton, literally, and get just as much jail time as someone with 1/4oz of weed and 1/2oz hash. I’m confused.”
Well, actually, you could sell just fifty pounds and get that 5-99, but we get your point. The problem (and I’m going to have us address this on future editions of the pages) is that in Texas, hash ain’t marijuana.
Our own John Lucy reviewed state hash laws, though I can’t tell you how old this page is and we certainly need to follow up on this (so please, don’t take it as legal advice on hash – seek your own counsel!) It appears there are just 22 states and DC* that treat hash the same as marijuana.
Texas is not one of them. Hashish is a felony under Tex. Health & Safety Code 481.103 & Sec. 481.116, as it is in most of the states that have separate definitions for hashish.
481.103, describing “Penalty Group 2? substances, in part:
Tetrahydrocannabinols, other than marihuana, and synthetic equivalents of the substances contained in the plant, or in the resinous extractives of Cannabis, or synthetic substances, derivatives, and their isomers with similar chemical structure and pharmacological activity such as:
delta-1 cis or trans tetrahydrocannabinol, and their optical isomers;
delta-6 cis or trans tetrahydrocannabinol, and their optical isomers;
delta-3, 4 cis or trans tetrahydrocannabinol, and its optical isomers;
compounds of these structures, regardless of numerical designation of atomic positions, since nomenclature of these substances is not internationally standardized;
481.116, describing punishments for “Penalty Group 2? substances:
(a) Except as authorized by this chapter, a person commits an offense if the person knowingly or intentionally possesses a controlled substance listed in Penalty Group 2, unless the person obtained the substance directly from or under a valid prescription or order of a practitioner acting in the course of professional practice.
(b) An offense under Subsection (a) is a state jail felony if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, less than one gram.
(c) An offense under Subsection (a) is a felony of the third degree if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, one gram or more but less than four grams.
(d) An offense under Subsection (a) is a felony of the second degree if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, four grams or more but less than 400 grams.
(e) An offense under Subsection (a) is punishable by imprisonment in the institutional division of the Texas Department of Criminal Justice for life or for a term of not more than 99 years or less than five years, and a fine not to exceed $50,000, if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, 400 grams or more.
So, it seems since he had an assumed 14 grams (1/2 ounce), he’d be covered under Subsection (d), not (e). But perhaps there are other circumstances moving the penalty to the (e) range. What I can find on Texas sentencing guidelines for 2nd degree felonies is two to twenty years in prison and possible fine not exceed $10,000. For a half ounce of hash, the baseline penalty is the same for:
- Aggravated assault
- Arson
- Bigamy
- Bribery
- Evading arrest (and death of another occurs)
- Improper relationship between educator and student
- Indecent contact with a child
- Intoxication manslaughter
- Manslaughter
- Online solicitation of a minor under fourteen
- Possession of fifty to 2000 pounds of marijuana
- Robbery
- Sexual assault
- Stalking—second offense
- Trafficking of persons
Got that? Four grams of hash equals fifty pounds of pot in Texas. You will be punished as severely for holding a little over an eighth-ounce of hash as if you had killed a person while drunk. You will do the same time as a teacher who seduces a student or a perv who solicits little kids online or touches them inappropriately. You are as reprehensible as the coyotes trafficking immigrants across the border, a repeat stalker and date-rapist, a thief, a polygamist, or an arsonist.
Another thing to consider: re-read that part about “if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants“. By aggregate weight means we’re weighing the whole thing, not just the weight on the cannabinoids. So if you’ve made marijuana brownies, for instance, you’re not facing charges for the 1/4 ounce of pot you put in them. You’re facing charges for 12 ounces of a Penalty Group 2 substance in Texas.
*Alaska, Arizona, Connecticut, Delaware, District of Columbia, Georgia, Idaho, Illinois, Iowa, Kansas, Kentucky, Louisiana, Maryland, Missouri, Nevada, North Dakota, Rhode Island, Utah, Vermont, Washington, West Virginia, Wisconsin, Wyoming. However, I know the Lucy page is out-of-date because it lists Oklahoma, which recently enacted draconian life in prison penalties for hashish.
What a disgrace this country of violent empire–these posts just make me sick. My heart goes out to Chris Diaz & family (on FB is a picture of his adorable young daughter)…my self-exile for almost eleven years is longsuffering-to not help from jail (I can’t stay out of jail:a-la Dana Beal) versus residing on foreign shores.
What a hellish life they create for the 1% to have their billions.
There is a big difference between being innocent of a particular crime and being convicted of a crime that’s seems, to us, unfair or unjust. We can say the law is nonsensical or overly punitive, which it is, and work hard to change such laws as NORML strives to do every day. But we cannot say that if hash is illegal in Texas — really, really illegal — that people who take hash into Texas and get convicted by a jury on the basis of those facts are victims of anything else than their own ignorance or poor judgment.
As a Californian, I suffer tobacco-infused flashbacks when I go to a Nevada casino and see people smoking cigarettes. I forget that California’s laws and social attitudes haven’t been adopted universally in other states. I worry that this provincial view, which is based more on politics than true understanding of the law, puts people needlessly at risk when they cross the border assuming their stash is no big deal. You’re not in Cali anymore, Toto, so read up on the laws BEFORE you travel. In all honesty, you’ll have no one but yourself to blame if you don’t.
That’s going to be a fun fight to watch. We know a California recommendation is not a “prescription”, but is it an “order of a practitioner acting in the course of professional practice”? After all, the recommendation isn’t a command to use cannabis, but a suggestion that it would be beneficial, is it not?
Now, logic, reason, and compassion would dictate that of course this is an order from a doctor and his use is not what the Texas statute was meant to punish. But we all know that the drug war is the permitted exception to logic, reason, and compassion in our justice system. And this is Texas we’re talking about.
I hope Chris’ defense counsel will use this and I wish him all the luck in the world on beating these charges.
Russ –
From the law, and from your post, THIS is certainly worth noting (using Caps to highlight)
(a) Except as authorized by this chapter, a person commits an offense if the person knowingly or intentionally possesses a controlled substance listed in Penalty Group 2, UNLESS THE PERSON OBTAINED THE SUBSTANCE DIRECTLY FROM OR UNDER A VALID PRESCRIPTION OR ORDER OFA PRACTITIONER ACTING IN THE COURSE OF PROFESSIONAL PRACTICE.
The law doesn’t specify, “Texas” Practitioner (fact). The prosecutor is overlooking this on purpose and it is very disturbing. I’ve reached out to him on several occassions, reading the law aloud to his secretary and asking her to take the note and pin it on his chest.
Furthermore, this gross mis-interpretation of the law can and will likely be considered “malicious prosecution”, since Chris presented his Valid Dr. Permit and card. That is a fact not in question.
We need to ensure he gets an impartial judge and a full jury trial, which is going to be difficult in Texas.
CA law has codified hash and marijuana in the same law, since hash is a derivative of marijuana. That makes sense. Texas law is irrational to separate hash from the cannabis plant it comes from. 5-99 years for medicine is so out of whack it is vulnerable on disproportional punishment grounds alone. Chris is innocent.
if you would like to help Chris Diaz and his family, here is a link to his donation site.
http://www.free215chris.com/
Chris has been extradited and is now back in Texas as of Jan. 11.
His family has lost their jobs and their home over this, his mother is taking care of Chris’s two little babies that he was raising by himself.
Chris is literally dependent on cannabis to survive. He has had asthma since birth and has tried every treatment known to medicine, with no relief until moving to California at age 16, on the advice of his doctor, in order to have access to cannabis medicine and organic food and clean water.
A conviction on these charges, which carry 5-99 years, is quite literally a death sentence for him.
Please help, if you can.