Drug Laws in Texas

Despite the state of Texas having a longstanding reputation for being tough on crime, drug laws in the Lone Star State rank on the more progressive and forward-moving end of the spectrum. Learning from the less-than-spectacular example set by California and its three-strikes laws, then-governor Rick Perry refocused the drug laws in Texas away from crime and punishment, and more towards treatment and rehabilitation.

The Texas Controlled Substances Act

Texas controlled substances actDrug laws in Texas fall under the Texas Controlled Substances Act, which divides drugs into four categories known as penalty groups. Penalty Groups 1-4 deal with various drugs, like opiates, cocaine, methamphetamines, LSD, fentanyl, MDMA, Rohypnol, and many others, such as anabolic steroids and peyote. Possession of a greater amount of a specific substance falls under the purview of the Controlled Substances Act; for example, Penalty Group 4 allows for possession of less than 200 milligrams of codeine per 100 milliliters, or per 100 grams.[1]

In Texas, marijuana is not a controlled substance; its possession and consumptions (and laws thereof) are not covered by the Texas Controlled Substances Act. Part of the reason may be due to more and more Americans supporting the legalization of cannabis, and increasing numbers of Texans adding their voices to the cause.[2],[3] But marijuana not being a part of the Controlled Substances Act is also the result of changes in Texas brought about by former Governor Rick Perry.

Rick Perry and Texas’s Drug Policies

When Perry took office in 2000, his state had a mere seven drug courts. In 2014, when Perry was presented with the Governor of the Year Award by the National Association of Drug Court Professionals, Texas was home to 136 drug courts and 15 courts that specifically treated army veterans who were struggling with substance abuse and mental health disorders as a result of their combat stress.[4],[5]

Despite his conservative credentials, Perry broke rank with his Republican legislative colleagues and called for the decriminalization of marijuana. Claiming that drug policies that focused more on punitive measures were outdated, his call for diversionary and rehabilitative programs stops short of legalizing marijuana, but still puts him at odds with other notable Republicans.[6]

In awarding Perry the National Award for Criminal Justice Reform, the National Association of Drug Court Professionals specifically mentioned his leadership in making both accountability and extensive treatment part of drug laws in Texas. To that effect, Texas lawmakers set aside unprecedented amounts of funding to help patients with mental health disorders, approving budgetary increases for mental health services that are among the largest such increases in the country, while the state itself once ranked the lowest across the United States for spending on mental health.[7]

House Bill 2165

Perry’s influence seems to have made its mark. House Bill 2165, which would pave the way for total legalization of marijuana in Texas by removing all limits and regulations on the amount of cannabis an adult could own (there would be no mention of marijuana on state law), was authored by a conservative, Tea Party Christian.

House Bill 2165 had more success in the legislative process than anyone expected, which the Texas Observer says makes Texas an unlikely front in the fight to legalize marijuana.[8]

The Changing Tide in Texas

marijuana legalization in TexasEven though the bill passed 5-2, it still has a long way to go before Texas becomes the fifth state in the United States to legalize recreational marijuana, with outright legalization remaining “unthinkable.” Nonetheless, proponents for legalization are confident that possessing pot will not be considered a crime in Texas’s future, especially because almost 58 percent of Texas voters support giving marijuana the same regulatory status as alcohol.[9],[10]

For now, however, the state still has some of the harshest penalties on the books when it comes to drug possession. Possessing marijuana is still only a Class B misdemeanor, but having 2 ounces of it can land a person in jail for as many as 180 days, with a possible fine of $10,000.[11] Possession of marijuana remains one of the most common causes of arrest in Texas, where almost 70,000 adults were arrested in 2013 for charges related to marijuana. Those 70,000 adults made up 60 percent of all the arrests in the state that stemmed from charges related to drug possession.

Such sobering statistics are why 49 percent of Texans support legalizing minor amounts of marijuana for personal, recreational use, and 77 percent support legalizing marijuana for medical use.[12]

Then-Governor Perry championed the cause of lessening penalties for possessing negligible amounts of marijuana, heralding an approach to cracking down on drugs that did not entail ominous prison sentences as a deterrent.

An Affront to Humanity

Current marijuana sentencing laws are one reason why the movement to legalize (or, at the least, decriminalize) marijuana is gaining steam. The problem goes back many years: From 1985 to 2005, the prison population in the state went from 37,281 to 152,000, accounting for the second-highest rate of incarceration in the country. Prisons could not accommodate so many inmates, and county jails had to shoulder some of the burden from state correctional facilities. While some convicts had to share cells and sleep on the floor, other inmates were released after serving just one month for every year of their sentence, to make room for incoming prisoners.[13]

That sets up the debate in the heart of Texas’s legislature: whether the state’s notoriously harsh drug sentencing laws is the next frontier, in the words of The Dallas Morning News. An opinion blog, written before the passage of H2165, asked if the intense prosecution for even the most miniscule possessions was doing more harm than good. An editorial in the same publication called it not only a waste of money, but also an “affront to humanity” that prisons were crammed with “low-level drug offenders.[14],[15]

California’s Proposition 47

California proposition a bill that downgrades a drug chargeWhen it comes to drug laws, Texas has its eye on three states: California, Washington, and Colorado.

In 2014, Californians strongly voted in favor of Proposition 47, a bill that downgraded a number of drug charges that reduced the legal consequences for possessing a certain amount of drugs. The move was partly to fight a smarter battle against drugs in the Golden State, and also to empty the prison system of millions of inmates who had been thrown in jail for the smallest of offenses, as a result of the infamous three-strikes law.[16],[17]

In analyzing the impact of Proposition 47, FiveThirtyEight.com looked at similar laws in four other states, Texas being one of them, and found that crime was down by 11 percent between 2007 and 2012, which saved the state $2 billion. Texas’s 2007 budget put aside $241 million for treatment programs intended to rehabilitate nonviolent offenders; as a result, there was a 4.5 percent decrease in incarceration rates the following year.[18] In writing about Texas’s prison system, which is one of the largest in America (and, by extension, one of the largest in the world), the Daily Beast writes that a person held in a maximum security prison costs the state of Texas $50.04 a day; putting the same person in a drug probation system costs $3.63 a day.[19]

Colorado and Washington

Colorado and Washington stance on possession of marijuanaWhen Colorado Amendment 64 legalized the sale and possession of recreational marijuana in Colorado in 2012, the U.S Department of Justice declined to intervene (even though cannabis is a Schedule I substance under federal law) because of limited resources to take the government of Colorado to court.[20] According to Forbes magazine, Colorado now sees more revenue from marijuana tax than it does alcohol: $70 million from pot, $42 million from alcohol. In fact, the state raised so much money in taxes from sales of marijuana and related products that it could afford to waive tax collections for a single day (because it “[raised] too much in pot taxes”).[21]

Being able to add 16,000 employees to the workforce makes Texas very interested in Colorado’s “grand experiment,” according to KHOU Houston, even as concerns of children and youth having easier access to marijuana grow among some Coloradans.[22]

And in Washington, the state is expected to see almost $700 million in tax revenue from the sale of marijuana.[23] The numbers aren’t lost on some Texan observers, who estimate that the Lone Star State could see revenue of $166 million if it legalized marijuana. That’s more money than the University of Texas football team, the most valuable college team in the United States, brings in.[24]

Texas Veterans and Medical Marijuana

Texas veterans have also added their voices to the chorus calling for marijuana reform. Calling for a legal alternative to the monopoly (and dangers) of prescription opioids, service people from different branches of the armed forces came together to campaign for greater access to cannabis products to alleviate physical and psychological suffering as a result of their combat experiences.

Al Jazeera writes of government-funded research that has suggested marijuana has medical applications that may be of help to military veterans, including with the treatment of post-traumatic stress disorder. However, due to Texas’s restrictions on the access and possession of cannabis, many veterans have to consume their products in secret, technically in violation of state law. Some soldiers even decline to inform their doctors that they are taking marijuana, fearing disciplinary action.[25]

To that effect, when current Texas Governor Greg Abbott signed the state’s first-ever medical marijuana laws into effect, Houston’s Sun-Times noted that Texas’s laws on cannabis are “very strict and outdated,” positing that the law may yet amount to “little to nothing” for Texans who want (or need) access to medical marijuana.[26]

Concerns about Legalization

In fact, such is the uphill battle for marijuana in Texas that an economic consulting agency ranks Texas the least likely state to legalize cannabis by 2017, while Michigan and Nevada are the likeliest states to do so.[27]

Some opposition to the drastic proposed change to Texas’s drug laws comes from concerns that while Colorado netted $70 million in tax revenue, the envisioned goal of curbing teen marijuana use has not materialized. The 2014 National Survey on Drug Use and Health reported a rise in drug use in Colorado that ranked it second in the country for drug use. Marijuana use among those 12-17 increased by 4 percent between 2011 and 2013. The Shorthorn pointed out that the legalization of cannabis in Colorado opened the door for harmful and toxic forms of marijuana (known as synthetic marijuana), and Colorado’s neighboring states even filed lawsuits because of the spillover effects of pot legalization. And Texas, adds The Shorthorn, has the added problem of being an enticing target for Mexican drug cartels just south of the border, who would love to have a piece of the $166 million legalization pie.[28]

To the Shorthorn’s point, Texas already has a problem with underage consumption of potentially harmful substances. The Dallas Morning News points to 2,100 adults being arrested for providing alcohol to a minor in Dallas County (the ninth most populous county in the United States, with 2.37 million people). “Drinking is so ingrained” in the culture of Texas, says the Morning News, that adults will permit underage drinking at parties and events on their properties, and alcohol is openly served at theme parks and baseball stadiums, to the extent that there is almost an “indoctrination” of alcohol among Texan youth.[29]

The Border Town on the War on Drugs

el paso the border town on the war on drugsIronically, even the legendary border town of El Paso is also tiring of Texas’s draconian drug laws. Despite hundreds of pounds’ worth of marijuana being illegally trafficked across the Rio Grande and the Mexican border, residents of El Paso believe that the militarized War on Drugs has done nothing but line the pockets of drug lords in neighboring Juarez, to the detriment of Texas’s own citizens.[30]

In total, 23 states now offer some form of legal marijuana, generally covering the use of marijuana for medical purposes. Alaska, Colorado, Oregon, and Washington have fully legalized recreational and medical use (with restrictions).[31] Given Texas’s long (and sometimes contentious) history with the federal government, how the state moves forward on the topic of legalizing marijuana, as well as the potential of reforming its tough laws on drug use and possession, might say a lot about the future of drug laws in the United States.

  1. “Texas Controlled Substances — Penalty Groups.” (n.d.) Defending People. Accessed December 12, 2015.
  2. Majority Continues to Support Pot Legalization in U.S.” (November 2014). Gallup. Accessed December 12, 2015.
  3. Poll: Support for Marijuana Legalization Soars in Texas.” (October 2015). The Daily Caller. Accessed December 13, 2015.
  4. Texas Governor Rick Perry Receives National Award for Criminal Justice Reform.” (April 2014). Globe News Wire. Accessed December 12, 2015.
  5. What is a Veterans Treatment Court?” (n.d). Justice for Vets. Accessed December 12, 2015.
  6. “Gov. Rick Perry, in Davos, Touts Texas as Model for Progressive Drug Policy Short of Decriminalization.” (January 2014). Austin-American Statesman. Accessed December 12, 2015.
  7. Legislators Devote New Funding for Mental Health.” (May 2013). Texas Tribune. Accessed December 12, 2015.
  8. How Texas Became a New Front in Marijuana Legalization Fight.” (June 2015). Texas Observer. Accessed December 12, 2015.
  9. Texas House Panel Approves Full Legalization of Marijuana.” (May 2015). Houston Chronicle. Accessed December 12, 2015.
  10. Texas OKs Full Marijuana Legalization Bill.” (May 2015). Mint Press News. Accessed December 13, 2015.
  11. Texas Drug Possession Laws.” (n.d.) FindLaw.com. Accessed December 12, 2015.
  12. Texans’ Attitude Shifting Along With U.S. On Legalizing Pot.” (February 2014). My San Antonio. Accessed December 12, 2015.
  13. Prison Reform is Bigger in Texas.” (April 2014). The Daily Beast. Accessed December 12, 2015.
  14. “Texas Drug Sentencing Laws — the Next Frontier?” (May 2013). The Dallas Morning News. Accessed December 12, 2015.
  15. “Editorial: In Law-and-Order Texas, Legislature Passes Critical Justice Reforms.” (May 2013). The Dallas Morning News. Accessed December 12, 2015.
  16. Californians Vote to Weaken Mass Incarceration.” (November 2014). The Atlantic. Accessed December 12, 2015.
  17. Prop. 47 Would Cut Penalties for 1 in 5 Criminals in California.” (October 2014). Los Angeles Times. Accessed December 12, 2015.
  18. What to Expect Now That California Passed Prop 47.” (November 2014). FiveThirtyEight.com. Accessed December 12, 2015.
  19. Texas Has Nation’s Largest Prison Population.” (August 2012). McClatchyDC. Accessed December 13, 2015.
  20. U.S. Won’t Sue to Reverse States’ Legalization of Marijuana.” (August 2013). The New York Times. Accessed December 12, 2015.
  21. Colorado Now Reaping More Tax Revenue From Pot Than From Alcohol.” (September 2015). Forbes. Accessed December 12, 2015.
  22. “Texas Closely Watching Colorado’s “Grand Experiment” With Commercialized Marijuana.” (November 2015). KHOU Houston. Accessed December 13, 2015.
  23. Legal Pot in Washington Bringing in Even More Tax.” (November 2014). The Huffington Post. Accessed December 12, 2015.
  24. Texas Could Bring in $166 Million From Legalizing Marijuana, Man.” (September 2014). Dallas Observer. Accessed December 12, 2015.
  25. Texas Vets Call for Medical Marijuana, End to Painkiller Dependence.” (November 2015). Al-Jazeera. Accessed December 13, 2015.
  26. “Texas Governor Signs State’s 1st Ever Medical Marijuana Law.” (June 2015). Houston Sun-Chronicle.Accessed December 13, 2015.
  27. States Most Likely (Michigan) and Least Likely (Texas) to Legalize Pot by 2017.” (November 2015). The Cannabist. Accessed December 13, 2015.
  28. Column: Texas Isn’t Ready for Marijuana Legalization.” (March 2015). The Shorthorn. Accessed December 13, 2015.
  29. Adults to Blame for Teen Drinking Culture.” (November 2010). Dallas Morning News. Accessed December 13, 2015.
  30. Texas Town Tired of “War on Drugs” At the Border Sees Push For Legal Marijuana.” (July 2015). The Guardian. Accessed December 13, 2015.
  31. 23 States Now Offer Form of Legal Marijuana; 58 Percent of American Support Legalization.” (November 2015). Mint Press News. Accessed December 13, 2015.
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