What Do Biden’s Marijuana Pardons Mean for Texans?

Short Answer: Not Much.

Who is Affected?

Probably not you. Biden’s federal pardons will apply to about 6,500 people in the United States of America. Only people convicted in Federal Court for marijuana possession are eligible for relief. If you were previously convicted of marijuana possession in State court, the federal pardon does not apply to you.

The pardon will apply to people with federal simple marijuana possession convictions from 1992 to 2021. The pardon will apply only to United States citizens and does not apply to lawful permanent residents. If you are a green card holder, the pardon does not apply to you.

The pardon does not apply to people convicted for selling or distributing marijuana.

As of today, there are no individuals in federal prison serving sentences for simple marijuana possession. No one will be released from prison based on the pardon.

In fact, very few people are ever convicted for simple marijuana possession in Federal court. For example, in 2017, only 92 people in the entire country were sentenced for simple marijuana possession in Federal court.[1]

Is Marijuana Legal Now?

No. Marijuana possession remains illegal under Federal law. President Biden only granted pardons; he did not recommend that marijuana possession be decriminalized at the Federal level.

However, President Biden directed the Department of Justice to review how marijuana is legally categorized. Right now, marijuana is a Schedule I substance, putting it in the same category as heroin, fentanyl, and LSD.

It’s likely that marijuana will be re-categorized to a lower level at some point in the future.

Marijuana is Still Illegal in Texas

In Texas, it is still illegal under state law to knowingly or intentionally possess a usable quantity of marijuana.[2] A “useable quantity” is determined by a Judge or Jury, but generally something more than just stems and seeds.

• Possession of less than two ounces is a misdemeanor and can be punished by up to 180 days in jail.

• Possession of more than two ounces, but less than four ounces, is a misdemeanor and can be punished by up to 1 year in jail.

• Possession of more than four ounces, but less than five pounds, is a state jail felony and can be punished by up to 2 years in state jail.

• Possession of more than five pounds, but less than fifty pounds, is a third-degree felony and can be punished by up to 10 years in prison.

• Possession of more than fifty pounds, but less than 2,000 pounds, is a second-degree felony and can be punished by up to 20 years in prison.

• Possession of more than 2,000 pounds is a first-degree felony and can be punished by up to 99 years or life in prison.

Possession of marijuana remains illegal. An officer can arrest an individual for simply possessing any usable quantity of marijuana. However, marijuana is defined as cannabis sativa more than 0.3% THC content. Cannabis sativa containing less than 0.3% THC content is considered hemp. Individuals may cultivate, purchase, and possess hemp in Texas.

The Texas definition of marijuana changed in 2019. Since that time, marijuana prosecution has dropped dramatically. In 2018, more than 50,000 marijuana charges were filed in Texas. So far this year, only 14,000 marijuana charges have been filed in Texas.[3]

So, is Marijuana Legal in Texas Now?

No, absolutely not. Possession of marijuana is still a state crime and a federal crime.

According to Court Activity Reporting, more than 5,000 Texans have been convicted in State court for marijuana possession this year.[4]

Will My Pending Possession of Marijuana Charge be Dismissed Now?

The announcement by President Biden pardoning individuals with a federal marijuana possession conviction does not have a direct legal impact on a pending marijuana charge in a Texas state court.

However, the announcement does indicate that national (and state) attitudes about marijuana criminalization are evolving quickly. While Biden’s announcement won’t directly result in a Texas marijuana charge being dismissed, it will add continued pressure on Texas prosecutors and legislators to treat marijuana possession differently.

I was Convicted of Marijuana Possession in Texas. Do I Get a Pardon?

Unless you were one of the 6,500 people convicted of simple marijuana possession in a federal court between 1992 and 2021, you will not receive a pardon. More than 99% of all marijuana convictions in Texas occur in State court, not Federal court.

President Biden’s announcement will not result in a state pardon. Only the Governor of Texas can grant a state pardon.

What Do I Do if I’m Arrested for Marijuana Possession?

Easy. Call me. My law firm litigates complex marijuana cases all over Texas. I sit on the Cannabis Committee of the Texas Criminal Defense Lawyers Association and dedicate a substantial portion of our practice to defending marijuana charges. We routinely win dismissal on nearly all marijuana cases.