Medical Marijuana in Texas

While nearly half the states now have laws allowing cannabis to at least for medical use, Texas does not. Marijuana is illegal to possess, even if the person accused possessed it for medicinal purposes, and even if it was obtained legally in another state.

Common law defenses, however, may still be available for medical marijuana users. Additionally, legislation has been gaining momentum that would allow a defense for people using cannabis to address chronic pain and other medical issues.

Texas Attorney on Medical Marijuana Defenses in Texas

If you were arrested for possession of marijuana that you were using for medical purposes, you should seek out the services of an experienced marijuana defense attorney. Goldstein, Goldstein, Hilley & Orr has been protecting the rights of people accused of criminal offenses in Bexar County since 1968.

Gerry Goldstein is a member of NORML (National Organization for the Reform of Marijuana Laws) National Legal Committee (NLC). Gerry Goldstein is a Lifetime Member and a frequent lecturer for the group. Being an active participant in the NORML Legal Committee allows the firm to advocate for the reform of marijuana laws and network with lawyers across Texas and throughout the country fighting similar battles to defend individuals charged with marijuana offenses. 

Our criminal defense attorneys in San Antonio can explore all of your possible legal defenses and fight to get criminal charges significantly reduced or completely dismissed. Call (210) 226-1463 or complete an online contact form right now to take advantage of a free consultation that will let our lawyers review your case.


Bexar County Medical Marijuana Information Center


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Necessity Defense in Texas Medical Marijuana Cases

It is a Class B misdemeanor, punishable by up to 180 days in jail and a fine up to $2,000, to possess up to two ounces of marijuana (called “marihuana” in the statute). Possession of a greater quantity results in escalating charges, including felony charges.

Any criminal charge in Texas may be countered with an affirmative defense. An affirmative defense is a legal justification of the alleged criminal actions. Whereas a prosecutor must prove an alleged offender’s guilt beyond a reasonable doubt, an alleged offender only needs to prove an affirmative defense by a preponderance of the evidence.

Necessity is an affirmative defense found under justifications in Texas Penal Code § 9.22. When an alleged offender asserts a necessity defense, the jury will be instructed that the alleged conduct was justified under the law of necessity if:

  • the alleged offender reasonably believes the conduct is immediately necessary to avoid imminent harm;
  • the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law prescribing the conduct; and
  • a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.

A “reasonable belief” is defined as “a belief that would be held by an ordinary and prudent person in the same circumstances as the actor,” and “ordinary standards of reasonableness” are defined as “the standards that would be applied by an ordinary prudent person under the same or similar circumstances as the defendant.”

In medical marijuana-related cases, alleged offenders could possibly assert the necessity defense by claiming that they possessed the cannabis (the conduct) to ease crippling pain or another medical condition (imminent harm). Thus, the desirability and urgency of avoiding that pain clearly outweighed whatever harm was caused by the possession of marijuana that violated state law.


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Medical Marijuana Case Law in Texas

On March 25, 2008, an Amarillo resident was acquitted of marijuana possession charges by successfully raising the medical necessity defense. According to NORML, it was believed to be the first marijuana case in which the necessity defense was accepted in Texas courts.

Tim Stevens suffered from cyclical vomiting syndrome (CVS), an illness involving sudden, repeated attacks of severe nausea, vomiting, and physical exhaustion that was associated with the human immunodeficiency virus (HIV) he was diagnosed with in 1986. Stevens had found that smoking marijuana helped ease the suffering he experienced with CVS.

Stevens’ attorney attributed the success for invocation of the necessity defense to the testimony of Dr. Steve Jenison, Medical Director of the Infectious Diseases Bureau for the Department of Health in New Mexico. Dr. Jenison testified about the success of the New Mexico medical marijuana program and not only marijuana’s efficacy in treating nausea but also how it was more effective than legal alternatives that need to be taken orally and can be difficult for a person suffering from CVS to keep down.

The libertarian magazine Reason reported that the trial lasted about 10 hours, but the jury needed only 11 minutes to return with a not guilty verdict.

Stevens’ attorney told the Austin Chronicle that he found at least two similar cases where the necessity defense had been raised. The affirmative defense was unsuccessful in both of those cases, and the Court of Criminal Appeals upheld the convictions when reviewing the cases.

In one of those cases, Stefanoff v. State (78 SW 3d 496 – Tex: Court of Appeals, 3rd Dist. 2002), the alleged offender attempted to invoke the necessity defense by claiming “it was necessary for him to possess and smoke marihuana to contain the adverse symptoms associated with” his post-traumatic stress disorder (PTSD). The Court of Appeals of Texas ruled:

Appellant asserts his evidence establishes “that [post-traumatic stress disorder] has a variety of symptoms, some sudden and severe, so that possession of marijuana at all times could be necessary to avoid them.” (Emphasis added.) But more than a generalized fear of harm is required to raise the issue of imminent harm. Brazelton v. State, 947 S.W.2d 644, 648 (Tex.App.-Fort Worth 1997, no pet.).

The bulk of appellant’s evidence concerns testimony relating to appellant’s diagnosis and treatment after he was charged with marihuana possession. The only testimony concerning the events leading up to appellant’s indictment came from appellant. And while we recognize that a defendant’s testimony alone may be sufficient to support a necessity defense, see Hayes, 728 S.W.2d at 807, it must actually raise the defensive issue before an instruction is proper, see Granger, 3 S.W.3d at 38.

Appellant testified as follows regarding imminent harm: (i) he threw a cup of hot coffee on his college professor; (ii) he became angry at his son and feared hitting him; and (iii) he had a general belief that it was necessary for him to smoke marihuana to control his post-traumatic stress disorder symptoms, including suicidal thoughts, flashback, depression, rage, and nightmares. We do not discount appellant’s illness; we find, however, that none of his testimony produces evidence of any conduct that would lead a reasonable person to believe a specific harm was imminent.

Even if appellant properly raised the element of imminent harm, we find the State refuted the immediate necessity element beyond a reasonable doubt. After adducing evidence of imminent harm, a defendant must next establish facts indicating a reasonable belief that the criminal conduct was immediately necessary to avoid the imminent harm. Tex. Pen.Code Ann. § 9.22(1).

“Reasonable belief” means a belief that would be held by an ordinary and prudent person in the same circumstances as the defendant. Id. § 1.07(a)(42). Reasonableness is determined from the defendant’s viewpoint at the time of the conduct. See Fitzgerald v. State, 782 S.W.2d 876, 885 (Tex.Crim.App.1990).

According to the uncontested testimony, smoking marihuana was appellant’s preferred coping mechanism. However, appellant himself testified that during a five-month period when he did not smoke marihuana, he was able to avoid causing serious injury to himself and others.

While we do not doubt that appellant’s post-traumatic stress disorder may have made this task difficult, the imminent harm component contemplates more than this; it necessitates an immediate, non-deliberative action made without hesitation or thought of the legal consequence. See Smith, 874 S.W.2d at 272-73.

Appellant’s marihuana possession resulted from a considered decision to cultivate fifteen marihuana plants. Appellant’s “medicinal” use of marihuana to manage his post-traumatic stress disorder symptoms is not the type of imminent harm to which the necessity defense applies.


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Medical Marijuana Use Under the Texas Compassionate Use Act

On June 1, 2015, Governor Greg Abbot signed Senate Bill 339—otherwise known as the Texas Compassionate Use Act— into law. The Act was intended to allow some qualifying patients to access “low-THC cannabis,” marijuana containing 10 percent or more cannabidiol (“CBD”) but not more than 0.5 percent tetrahydrocannabinol (“THC”)—the euphoric compound that makes users feel high.

The Texas Department of Public Safety (DPS) Public Safety Commission (PSC) adopted administrative rules at its meeting on December 17, 2015, and the administrative rules became effective January 10, 2016. The bill requires DPS to license at least three dispensing organizations by September 1, 2017.

Under the administrative rules, prescribing physicians must join the Compassionate Use Registry. Patients must be permanent residents of Texas, and intractable epilepsy is the only condition that qualifies for participation in the Compassionate Use program.

In order to participate, a patient needs to get care from an authorized physician. The physician can authorize the patient to have access to low-THC cannabis participate only if at least two United States Food and Drug Administration (FDA)-approved drugs are found to be ineffective in treating the patient’s intractable epilepsy.


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Medical Marijuana Legislation in Texas

In addition to the Texas Compassionate Use Act, many other marijuana-related bills were introduced during the 84th Texas Legislature. While none of these House Bills (HBs) were enacted, legislation included:

  • HB 325 — A bill that would have reclassified the Class B misdemeanor offense for possession of 0.35 ounces or less of marijuana as a Class C misdemeanor failed to receive an affirmative vote in the House Criminal Jurisprudence Committee;
  • HB 414 — A bill that would have reclassified the Class B misdemeanor offense for possession of one ounce or less of marijuana as a Class C misdemeanor failed to receive an affirmative vote in the House Criminal Jurisprudence Committee;
  • HB 507 — A bill that would have replaced most criminal penalties for possession of one ounce or less of marijuana with a simple fine was sent to the House Calendars Committee;
  • HB 557 — A bill that would have allowed the cultivation of hemp for certain research purposes was placed on the General State Calendar, but not in time for a vote; and
  • HB 837 — A bill that would create an affirmative defense to prosecution specifically for patients using marijuana medicinally was left pending in the House Public Health Committee;
  • HB 1322 — A bill that would have allowed the industrial production and sale of hemp in Texas was left pending in the House Agriculture & Livestock Committee;
  • HB 2165 — A bill that would have repealed marijuana offenses in Texas was sent to the House Calendars Committee; and
  • HB 3785 — A bill for a comprehensive medical marijuana program was left pending in the House Public Health Committee.

Senator Jose Menéndez also introduced SB 1839 as a companion bill for HB 3785 introduced by Texas State Representative Marisa Márquez. The bill would allow Texas residents to use cannabis to treat more ailments than provided for under the Compassionate Use Act, including cancer, seizure disorders, PTSD, multiple sclerosis, Crohn’s disease, and other debilitating conditions.

This bill and many of the others listed above are expected to be reintroduced when the 85th Texas Legislature convenes on January 10, 2017.


Does Texas Recognize a Marijuana Prescription Defense?

Texas law does not currently recognize a prescription defense when marijuana is prescribed in another state and brought into the State of Texas because THC is a Schedule I controlled substance under Tex. Health & Safety Code Ann. § 481.032. The health and safety code provides that a Schedule I controlled substance “has no accepted medical use in treatment in the United States or lacks accepted safety for use in treatment under medical supervision.” Id. § 481.035(a)(2).

Texas law does not authorize prescriptions for Schedule I controlled substances. See 37 Tex. Admin. Code Ann. § 13.72 (2014). The Tex. Dep’t of Pub. Safety, Prescriptions sets forth the requirements for prescriptions for Schedule II—V controlled substances. As a result, the courts have found that a person cannot burden of bringing forth evidence with respect to the valid-prescription exception of section 481.116 when marijuana is prescribed by a doctor in another state. See Dowden v. State, 455 S.W.3d 252, 256 (Tex. App. 2015).


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Medical Marijuana Resources

HIV-Positive Man Wins Acquittal In Texas’ First Cannabis Medical Necessity Defense —  Article by NORML discusses the acquittal of Tim Stevens in Amarillo in 2008. His attorney was also a member of the NORML Legal Committee.

CBD Only vs. Whole Plant Legislation – Article by Texas NORML discussing the benefits and advantages of “Whole Plant” comprehensive medical marijuana legislation vs. “CBD only” (Texas Compassionate Use Act).

Texas DPS | Compassionate Use Program — Learn more about the Compassionate Use Program in Texas on this website. You can find links to the full text of the original Senate Bill as well as the full set of administrative rules for the program. Additional information includes news, updates, and answers to frequently asked questions.


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Find a Lawyer for Medical Marijuana in San Antonio, TX

If you were you arrested in Texas for possessing marijuana or another marijuana-related offense, then contact Goldstein, Goldstein, Hilley & Orr as soon as possible to discuss your case. Our attorneys serve communities throughout Bexar County and surrounding counties of Texas. You can receive a complete evaluation of your case as soon as you call (210) 226-1463 or fill out an online contact form today.


This article was last updated on Friday, November 22, 2017.

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