In 2018, more than 8.1 million U.S. adults were current electronic cigarette (e-cigarette) users. Since then, a large number of recreational marijuana distributors repurposed the same technology to create THC vape pens.
The simplicity and perceived popularity of vaping make them extremely popular with younger and older adults. Rates of cannabis vaping among college students increased from 11% in 2018 to 14% in 2019.
Even though THC vape pens are available in recreational states with other forms of marijuana, Texas treats non-tobacco vape pen possession differently than marijuana flower possession.
Typically, in Texas a THC vape pen will be charged as a felony and not a misdemeanor. While marijuana flower possession of up to 2 ounces is not a felony in Texas.
Meaning, someone could have more than an ounce of marijuana flower and get a misdemeanor charge, while a person with a single vape pen gets a felony charge.
The lawyers at Austin Hagee Law Firm have experience with the nuances of Texas vape pen laws and can explain the criminal penalties and collateral consequences associated with concentrated THC possession.
Also, our firm can help explain whether or not you will be facing a misdemeanor or felony charge.
What are the THC Vape Pen Laws in Texas?
The THC oil that is found in a THC vape pen is a form of THC concentrate. Even though possession of up to two ounces of marijuana plant is only a misdemeanor charge, possession of even one gram of concentrated THC is a state jail felony in Texas.
Officers often weigh the electronic battery portion of the vape pen, and not just the concentrated THC oil. So if they want to charge you, it is likely that officers will have no trouble showing a total weight that results in a felony charge.
Possession of THC concentrate and possession of marijuana flower carry different penalty ranges because they fall into separate penalty groups.
THC concentrate, hashish, and other marijuana-infused products are considered the controlled substance tetrahydrocannabinol (THC). THC is a Penalty Group 2 or Group 2A drug with other controlled substances like:
- Methylenedioxy-Methamphetamine (MDMA or Ecstasy),
- Psilocybin (Mushrooms),
- Amphetamine (Adderall),
- Phencyclidine (PCP), or
- Mescaline.
Marijuana is defined in the Texas Health and Safety Code and specifically excludes resin extracted from the plant. The State outlines less severe penalties for marijuana possession separate from the penalties for other controlled substances. Many marijuana flower charges are misdemeanors only.
Our team can help you understand the differences between marijuana charges and the different penalties associated with them. In certain situations, you may be charged for possessing a substance you purchased legally, such as Delta 8 or Kratom, if you cannot provide proof of your legal purchase at the time of arrest.
The fact that these substances are sold as legal CBD further complicates the legal landscape regarding marijuana and vape pen possession Texas.
Penalties for Possession of a THC Vape Pen in Texas
If someone is convicted for possession of THC concentrate, the level of the charge is based on the aggregate amount of the concentrate in their possession.
Possession of less than one gram (POSS CS PG2<1G) of THC concentrate is a state jail felony, punishable by between six months and two years in jail and a fine of up to $10,000.
Possession of more than one gram but less than four grams (POSS CS PG2 1-4G) of THC concentrate is a third-degree felony punishable by between two and ten years in prison and a fine of up to $10,000.
Possession of more than four grams but less than four hundred grams (POSS CS PG2 4-400G) of THC concentrate is a second-degree felony and is punishable by between two and twenty years in prison and a fine of up to $10,000.
Possession of 400 grams or more (POSS CS PG2 >400G) of THC concentrate is punishable by a minimum of five years and has a punishment range between five and ninety-nine years in state prison with a fine of up to $50,000.
Collateral Consequences
Texas law prohibits individuals with a felony conviction from owning a gun, at their home, until five years after their release from prison or community supervision. Therefore, a vape pen possession conviction can temporarily impact your 2nd Amendment right to bear arms.
Additionally, Texas does not allow anyone with a felony conviction to hold a public office position or receive public benefits like food stamps or Supplemental Nutrition Assistance Program (SNAP). Lastly, convicted felons cannot vote in Texas until after their incarceration or probationary sentence is fully discharged.
Defenses to Possession of a THC Vape Pen
In some cases, a legal defense may negate an element of the vape pen possession charge and help your attorney build a strong defense strategy. Common legal defenses to vape pen possession charges include:
- The substance inside the vape pen did not contain THC;
- The substance inside the vape pen did not contain more than 0.3% Delta-9 tetrahydrocannabinol and is legal hemp under the 2018 Farm Bill;
- The person charged did not have “knowing possession” of the vape pen;
- The substance inside the pen was too little to be tested, making the state’s case impossible to prove;
- The vape pen belonged to another person; or
- The vape pen was left in your vehicle or in your belongings without your knowledge.
Contact Austin Hagee Law Firm, so a member of our team can review your case and determine whether a legal defense applies to your situation. This is a non-exhaustive list, and our team is happy to discuss how we can help you build a legal defense.
What happens if you get caught with a Vape or Dab Pen in Texas?
If you get pulled over in Texas and police officers discover a THC vape pen or other product containing THC concentrate, they may arrest you on the spot. If you are caught with a vape pen in Texas you will most likely be facing a felony possession charge.
This situation can be difficult to comprehend and navigate, especially if you have never had a felony charge before. Since many people do not expect to find themselves being arrested for a vape pen, we have provided some tips on how to best handle situations like this.
Exercise Your Right to Remain Silent
When you are arrested, law enforcement should advise you of your right to remain silent and your right to an attorney. Nevertheless, authorities may ask you questions about your plans for the evening, hoping you will become comfortable and give them something to use against you.
Cooperate with Law Enforcement
We know that getting arrested is a stressful, overwhelming experience. Still, you should do your best to remain calm. Failing to cooperate with law enforcement can result in serious charges being added against you for resisting arrest or interfering with public duties.
Do not give the officers any reason to add charges to your arrest. Failing to cooperate may also make prosecutors less likely to give you the best plea options later on. In short, cooperate with commands, be quiet, and get through the arrest process.
Be Patient
While being arrested, you may think that this is the perfect moment to try to befriend the officers and tell them all of the reasons they should not arrest you. Despite your situation, officers by definition are “law enforcement” and cannot drop your charge based upon your likability or life situation.
Unfortunately, no matter your situation, any information given at the time of arrest will be used against you. With this in mind, it is much better to patiently wait to build your defense with your attorney.
Contact a Texas Vape Pen Defense Attorney
You should hire a criminal defense lawyer to defend you against vape pen charges right away. The earlier you contact an attorney, the sooner you can start building your defense to put yourself in a position for success when you go to court.
A felony conviction on your criminal record can damage your future employment opportunities, affect your current position, and ruin your criminal record.
How Can a Lawyer Help Me With Vape Pen Charges?
An experienced THC possession lawyer can help you:
- Analyze the facts and prepare the strongest legal strategy for your defense,
- Locate and prepare potential witnesses to testify on your behalf,
- Review body worn camera footage collected by responding officers,
- Challenge the forensic test results at a 702/705 expert hearing,
- Determine whether a legal defense applies to your case,
- Assist you in building a mitigation defense to secure favorable plea options like pretrial diversion (PTD) or a conditional dismissal,
- Draft and argue motions to suppress evidence, and
- Prepare your case for trial when necessary.
Navigating such a felony criminal charge is not as easy as it looks on TV. You should not trust your future in the hands of an inexperienced, ineffective lawyer. Few things can impact a person’s future more than a felony charge.
Frequently Asked Questions
Our seasoned defense attorneys at Austin Hagee Law Firm answer some common questions about THC vape pen charges in Texas below. If you have other questions, call our office to schedule an appointment to speak with an attorney.
Is a Vape Pen a Felony in Texas?
Yes, possession of a THC vape pen in Texas is a felony, even if you possess less than one gram. The concentrated THC oil in the vape pen makes it a felony for Possession of Controlled Substance in Penalty Group 2. Other products containing THC concentrate include:
- Edible THC gummies,
- Shatter,
- Dabs,
- Live resin,
- Wax, or
- Hash.
Possession of any of the items outlined above is a Texas felony for Possession of Controlled Substance in Penalty Group 2.
Can I Carry a Vape Pen in Texas If I Have an Out-of-State Medical Marijuana License or Prescription?
No, you cannot legally carry a THC vape pen in Texas even though you possess a valid medical marijuana prescription or license from another state. Not knowing that a medical marijuana license is invalid in Texas is not a valid legal defense to possessing a THC vape pen here.
Does Texas recognize out-of-state Medical Marijuana cards?
No, Texas does not have reciprocity with other states to recognize medical marijuana licenses. However, having a valid medical marijuana license from another state may help you secure a more favorable outcome for your marijuana case in Texas.
Will a minor be charged with a felony for possessing a Vape Pen in Texas?
Most of the time, a minor will be charged with a felony for possessing a THC vape pen in Texas. If the minor is under the age of 17, then they will likely be charged with a juvenile case.
If the minor is 17 years or older, they will likely be charged with a felony in adult court. It should be noted that effective September 1, 2023, Texas passed House Bill 114 which requires students to be sent to a disciplinary alternative education program (DAEP) if they have sold, given, possessed, or consumed a THC vape within 300 feet of school property.
How can I get a Vape Pen case dismissed in Texas?
This is a bit of a complicated question, but there are several avenues for getting a felony THC vape pen case dismissed. Due to the unequal enforcement of marijuana vape pen laws across our nation, many prosecutors are willing to offer favorable plea options to individuals that meet certain criteria.
For example, if you have not been previously convicted of a felony and were not involved in a violent crime at the time of the offense you can likely secure a pretrial diversion, conditional dismissal, or deferred adjudication in a vape pen case. All three of these options will result in a dismissal on your record.
Also, if you were illegally searched or detained by law enforcement, you will be able to have the evidence against you suppressed. A suppression makes the evidence collected against you go away, and almost always, results in a dismissal. Each situation is unique, so it is important to analyze your case facts with an attorney.
Talk to a Lawyer at Austin Hagee Law Firm, Your Texas Vape Pen Lawyer
A THC vape pen is a common method of marijuana consumption, especially in states with legalized recreational marijuana. Many people think carrying a THC vape pen in Texas is the same as carrying marijuana flower. Unfortunately, that is not the case. The difference between a misdemeanor and a felony is a large one.
Our prior experience as prosecutors gives the attorneys at Austin Hagee Law Firm in-depth knowledge of the complexities of the criminal justice system and what to expect from the District Attorney handling your charge.
We will prepare a defense strategy that emphasizes the prosecution’s inability to prove your guilt beyond a reasonable doubt, and negotiate to reduce your charges or dismiss them entirely.
We have had success getting felony vape pen charges dismissed completely, dismissed by agreement, or reduced. We stand ready to fight for you and your family today.
Contact Austin Hagee Law Firm today to schedule an appointment with an attorney and discuss your case.