College students, professionals, and parents get arrested in Galveston County every week over a vape pen and are stunned to learn they are facing a felony. Brian Foley explains the law behind it in this video.
Marijuana vs. THC
Texas treats the plant and the extract differently. Possession of marijuana — the flower — is charged under Health & Safety Code § 481.121: up to two ounces is a Class B misdemeanor. THC extracted from the plant — oil, wax, shatter, edibles, and the contents of a vape cartridge — is a "tetrahydrocannabinol other than marihuana" in Penalty Group 2 under § 481.103. Possession of PG2 is charged under § 481.116, and the lowest level is a state jail felony (180 days to 2 years in a state jail facility, up to a $10,000 fine).
The weight problem
Penalty Group 2 is graded by aggregate weight "including adulterants or dilutants." Prosecutors weigh the entire contents of the cartridge — the oil, the carrier, sometimes the cartridge itself if the lab does not separate it. A standard one-gram cartridge is right at the line between a state jail felony (under one gram) and a third-degree felony (one to four grams, 2–10 years). Two cartridges can be a third-degree felony.
Consequences beyond the sentence
A felony conviction means loss of firearm rights, disqualification from many licenses and jobs, and immigration consequences. Even deferred adjudication on a felony carries lasting effects.
Defending vape cases
Every vape case starts with a search — a traffic stop, a "smell of marijuana," a consent request. The stop and the search are challenged first. Then the lab: what cannabinoid was found, in what concentration, and whether the weight was measured properly. Then knowledge, particularly when the product was purchased as legal hemp. And for eligible first-time defendants, Galveston County's diversion programs can end the case in a dismissal and an expunction.
See the Penalty Group 2 page or call or text (409) 877-4909 for a free consultation with our Galveston drug defense attorneys.