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Marijuana Possession Defense in San Marcos & Hays County

Marijuana is still illegal in Texas. A Class B misdemeanor possession charge creates a permanent criminal record on every background check — and the standard field test used at the roadside cannot distinguish legal hemp from illegal marijuana. That distinction alone has gotten cases dismissed. Trial-tested defense. Former prosecutor on staff. Over 930 dismissals or rejected cases since 2021. Call 737-937-5786.

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✓ Hemp/Marijuana Distinction Defense✓ 4th Amendment Evaluated✓ Hays County Courts✓ Available 24/7
Litigator of the Year 2023 — marijuana possession defense attorney San Marcos Hays CountyMark Hull
Expertise.com Best Criminal Defense Lawyers Hays County — marijuana defense TexasMark Hull*
National Trial Lawyers Top 100 — marijuana possession defense San MarcosMark Hull — 2022
Top 40 Under 40 — Allison Tisdale former prosecutor marijuana defense Hays CountyAllison Tisdale — 2022
Lawyers of Distinction — marijuana possession defense attorney Hays County TexasMark Hull
Criminal Defense Top 10 — marijuana possession defense San Marcos TexasMark Hull

*Based on the quality and quantity of reviews and average minimum rating for a law firm practicing criminal defense in Austin, TX researched by expertise.com

Marijuana Possession in Texas — Still Illegal, Still Defensible

Marijuana possession in Texas is charged under Health & Safety Code §481.121. It is still a criminal offense at every level, from a Class B misdemeanor for possession of less than 2 ounces through a first-degree felony for 2,000 pounds or more. Texas has not decriminalized recreational marijuana use, and no amount is legal for personal use. Even a Class B misdemeanor conviction — the most common marijuana charge in Hays County — creates a permanent criminal record that shows on background checks, affects professional licensing, and can disqualify you from federal student financial aid.

The hemp defense is the most significant development in marijuana cases in recent years. In 2019, Texas legalized hemp under Agriculture Code §122.001, defining hemp as cannabis with a THC concentration of 0.3% or less by dry weight. The visual appearance and smell of hemp and marijuana are identical. The standard Duquenois-Levine field test used by officers at traffic stops cannot determine THC concentration — it only detects the presence of cannabinoids. Without a gas chromatography laboratory analysis confirming THC content above the 0.3% threshold, the prosecution cannot prove the substance was illegal marijuana rather than legal hemp. We raise this defense on every marijuana case where the state is relying on field test results rather than confirmed lab analysis.

And before any of that, I look at the stop. Many marijuana arrests in San Marcos arise from traffic stops on IH-35, Loop 82, or the Texas State University area. If the stop lacked reasonable articulable suspicion, the marijuana goes with it. Call 737-937-5786 before you say anything to police.

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Marijuana Possession Penalties in Texas — Weight-Based Tiers

Every level requires the prosecution to prove the weight and the identity of the substance. Both are challengeable. The hemp/marijuana distinction applies to every tier.

QuantityClassPenaltyKey Note
Under 2 ouncesH&S Code §481.121(b)(1)Class B Misd.Up to 180 days • $2,000Most common MJ charge in Hays Co.
2 to 4 ouncesH&S Code §481.121(b)(2)Class A Misd.Up to 1 year • $4,000Permanent record • Licensing impact
4 ounces to 5 poundsH&S Code §481.121(b)(3)State Jail Felony180 days–2 yrs • $10,000Felony record • Weight near border challengeable
5 to 50 poundsH&S Code §481.121(b)(4)3rd Degree Felony2–10 years • $10,0002–10 yrs TDCJ
50 to 2,000 poundsH&S Code §481.121(b)(5)2nd Degree Felony2–20 years • $10,0002–20 yrs TDCJ
Over 2,000 poundsH&S Code §481.121(b)(6)Enhanced 1st Degree5–99 yrs or life • $50,000Highest MJ penalty • Trafficking level
THC ConcentrateH&S Code §481.116 — PG2State Jail Felony+SJF minimum • Higher with weightVapes, wax, dabs = felony regardless of weight
Marijuana possession defense San Marcos — hemp vs marijuana field test challenge and vape pen THC concentrate Hays County

The Hemp Defense — Why the Field Test Is Not Enough

Since Texas legalized hemp in 2019, every marijuana prosecution that relies on field test results rather than laboratory confirmation has a specific vulnerability. Here is why: the Duquenois-Levine presumptive field test that officers use at traffic stops detects cannabinoids — it does not measure THC concentration. It cannot tell the difference between hemp at 0.1% THC and marijuana at 25% THC. Both test positive. Both look the same and smell the same.

To prove the substance is illegal marijuana — and not legal hemp — the prosecution needs a gas chromatography mass spectrometry (GC-MS) laboratory analysis confirming THC concentration above the 0.3% threshold. If the state’s evidence is a field test result, a visual observation, and an officer’s smell testimony, that may not be sufficient to prove beyond a reasonable doubt that the substance was illegal marijuana. DA Kelly Higgins’s office is aware of this evidentiary issue, but many cases are still filed on field test results alone. We challenge the substance identification on every marijuana case where GC-MS confirmation is absent or where the lab analysis methodology is contestable.

For THC concentrate cases — vape pens, wax, dabs — the charge jumps to a state jail felony under PG2, regardless of quantity. The same hemp distinction applies: the substance must be shown to exceed 0.3% THC concentration by laboratory analysis, and the chain of custody from the arrest to the lab must be intact.

Marijuana defense attorneys San Marcos — Mark Hull and Allison Tisdale defending marijuana possession charges in Hays County

How We Defend Marijuana Possession in Hays County

Marijuana defense in Texas has more viable angles than most clients realize when they walk in. We pursue all of them simultaneously.

01
Challenge the stop for Fourth Amendment violations

The most common marijuana arrests in San Marcos come from traffic stops. Before anything else, I examine whether the stop was legally justified — dashcam footage, the officer’s written justification, the dispatch log. An unjustified stop means the marijuana cannot be used as evidence.

02
Challenge the substance identification with the hemp defense

If the state is relying on a field test result, we demand the GC-MS laboratory analysis. If it doesn’t exist, we file a motion challenging whether the prosecution can prove the substance was illegal marijuana beyond a reasonable doubt. This defense has been raised successfully in Texas courts since hemp legalization in 2019.

03
Challenge the weight and tier designation

The charge level depends on the weight. We verify the lab’s weight measurement methodology, whether stems and seeds were included in the weight, and whether any non-marijuana material was counted in the total. Weight near a tier boundary is always specifically challenged.

04
Evaluate constructive possession in shared vehicle and residence cases

If the marijuana was found in a shared vehicle, a common area of a residence, or any location where multiple people had access, the prosecution must prove you specifically had knowledge and control. We challenge the connection between the marijuana and you when the facts support it.

05
Pursue deferred adjudication when dismissal isn’t achievable

When outright dismissal is not achievable, deferred adjudication probation under §481.121 allows the case to be dismissed upon completion. Most PG misdemeanor and lower-level felony marijuana charges are eligible. Completion of deferred adjudication may allow an order of non-disclosure. We evaluate all options honestly on every case.

06
Evaluate expungement on every dismissed case

A dismissed marijuana charge can be expunged under Texas Chapter 55, removing the arrest entirely from public background checks. We file the petition as soon as the client is eligible.

Marijuana Defense in Hays County — Why Experience With Local Courts Matters

Mark Hull has defended marijuana possession cases in the Hays County Courts at Law for over 20 years. The hemp/marijuana distinction is a defense that requires knowledge of how DA Kelly Higgins’s office handles lab requests and what its standard approach is when the case rests on field test evidence alone. Local knowledge is not a nice-to-have — it is the defense.

Allison Tisdale prosecuted drug cases in Texas courts before joining the defense. She knows how this office evaluates its marijuana files, what it considers sufficient evidence of identity and weight, and where the prosecution’s case is most exposed. We carry a 5.0 rating across 363 Google reviews and have achieved Over 930 dismissals or rejected cases since 2021 across Central Texas courts, including marijuana cases dismissed on hemp distinction and Fourth Amendment grounds.

◆ Trial-Tested Criminal Defense

20+ years of Texas criminal defense experience. Hays, Travis, Williamson, and Caldwell county courts. Mark Hull.

◆ Former State Prosecutor on Staff

Allison Tisdale prosecuted criminal cases as a Texas state prosecutor. She knows how DA Kelly Higgins’s office builds drug cases — and where they fall apart.

◆ Tried Cases to Verdict in Hays County

When the evidence supports going to trial, we go. That changes how the prosecution values every negotiation at every prior stage.

◆ Over 930 dismissals or rejected cases since 2021

Hays County, Travis County, Williamson County — drug charges, DWI, assault, and felonies of every level.

Over 930dismissal or rejected cases since 2021
5.0Google Rating (363 Reviews)
20+Years in Hays County Courts

Marijuana Possession FAQ — Hays County & San Marcos

Common questions about marijuana charges in Texas — answered with specific statute citations and Hays County court details.

No. Marijuana remains illegal in Texas at every quantity for recreational use. Texas has not passed decriminalization legislation and there is no legal amount for personal use. Hemp — cannabis with a THC concentration of 0.3% or less by dry weight — is legal under Texas Agriculture Code §122.001. The distinction between hemp and illegal marijuana is a central defense issue on possession cases where the prosecution relies on field test evidence rather than confirmed laboratory analysis.

Possession of marijuana under 2 ounces is a Class B misdemeanor under Health & Safety Code §481.121(b)(1): up to 180 days in Hays County jail and a fine up to $2,000. The charge is heard in the Hays County Courts at Law at 712 S. Stagecoach Trail. A conviction creates a permanent criminal record. It is not a citation, not a traffic offense, and not something that “goes away” — a Class B misdemeanor conviction is permanent until expunged or sealed, and it is only expungeable if the case is dismissed, not if there is a conviction.

Yes — significantly, in cases where the prosecution is relying on field test evidence. Since Texas legalized hemp in 2019, law enforcement must prove the substance has a THC concentration above 0.3% to establish it is illegal marijuana rather than legal hemp. Standard Duquenois-Levine field tests cannot determine THC concentration. Without a gas chromatography mass spectrometry laboratory analysis confirming THC content, the prosecution may not be able to prove beyond a reasonable doubt that the substance was illegal marijuana. We raise this challenge on every marijuana possession case where the field test is the primary identification evidence.

TSU students charged with marijuana possession in San Marcos face two simultaneous consequences: the criminal case in the Hays County Courts at Law, and a student conduct proceeding at Texas State University under the student code of conduct. The two proceedings run independently and on different timelines. A criminal case dismissal does not automatically resolve the student conduct matter. We evaluate both tracks from the first consultation for TSU student clients, because the academic consequences — housing, financial aid, enrollment status — are often the more immediately pressing concern.

A marijuana conviction cannot be expunged. A dismissed marijuana charge can be expunged under Texas Chapter 55. Deferred adjudication completion for a Class B or A misdemeanor marijuana charge may allow an order of non-disclosure under Government Code §411.072, which seals the record from most public view — but does not destroy it. The distinction matters: an expunged arrest is legally gone from most background checks; a non-disclosed record is sealed but accessible to certain agencies and licensing boards. Dismissal — whether through a suppression motion, a hemp challenge, or a deferred adjudication — is always the primary goal.

Yes — and the difference is significant. While marijuana possession under 2 ounces is a Class B misdemeanor, THC concentrate — vape pen oil, wax, dabs, shatter — is classified as a Penalty Group 2 substance under Health & Safety Code §481.116. Any amount of THC concentrate is a state jail felony minimum: 180 days to 2 years in state jail and up to a $10,000 fine. This means a small amount of vape pen oil is charged at a significantly higher level than a larger amount of marijuana flower. The hemp defense still applies to concentrate cases — the substance must be confirmed as exceeding 0.3% THC concentration by laboratory analysis.

Deferred adjudication is a form of community supervision where the court defers entering a finding of guilt. If you complete the probation terms, the case is dismissed. For most first-offense marijuana possession charges, deferred adjudication is available and allows the defendant to avoid a permanent conviction. Completion may allow an order of non-disclosure. Deferred adjudication is not the same as dismissal — it is still visible on background checks during the probation period and under certain background check systems. We evaluate deferred adjudication only when outright dismissal is not achievable.

Call 737-937-5786 immediately. Do not consent to searches and do not make statements about the substance, where it came from, or how long you had it. The hemp defense depends on the specific evidence collected at the stop — including whether the officer documented a smell, what the field test showed, and whether the substance was sent to a certified lab for GC-MS analysis. The earlier we are involved, the more completely we can evaluate the stop, the identification evidence, and the weight calculation before any hearing or trial.

Drug Defense Resources — San Marcos & Hays County

Related pages covering drug charges and criminal defense in San Marcos and Hays County.

Drug Charges Hub

All drug charge types in Hays County — penalty groups, quantities, and defense overview.

Controlled Substance Possession

PG1–PG4 possession — cocaine, meth, heroin, and prescription drugs.

Drug Paraphernalia

Paraphernalia charges frequently accompany marijuana possession in Hays County.

Drug Trafficking

Marijuana delivery and trafficking — weight-enhanced charges and intent to deliver.

Expungement San Marcos

Clearing a dismissed marijuana charge from your record under Texas Chapter 55.

Juvenile Defense

Juvenile marijuana charges and record sealing in Hays County Family Court.

Criminal Defense San Marcos

Full criminal defense hub for all charge types in Hays County.

Jail Release

Bond and release after a marijuana arrest in Hays County.

What Our Clients Say

5.0 stars • 363 Google reviews from clients across Hays County, Travis County, and Central Texas.

RL
Ronnicka Lopez
★★★★★
Google

“After two years, the case was dismissed and dropped. They made this whole ordeal easy, kept me in the loop, told me exactly what to expect. Mrs. Allison is such an amazing and sweet lady — the whole team. I see exactly why they received multiple awards for best law firm in the state.”

BS
Blake Shires
★★★★★
Google

“My case was dismissed. Mr. Hull was patient, attentive, and consistently communicative from start to finish. He explained every step and made sure I felt supported throughout. I highly recommend Mark Hull and The Hull Firm.”

SH
Shawn Hallman
★★★★★
Google

“These attorneys were responsive, intelligent, and relentless. I appreciated how they always had a plan and stayed one step ahead. If you’re facing criminal charges, you want them on your side.”

Marijuana Charge in San Marcos or Hays County? Call Us Today.

The field test alone may not be enough to prove it was marijuana. The stop may not have been legal. Call our San Marcos drug defense team at 737-937-5786 — 24 hours a day, 7 days a week.

Free Consultation737-937-5786

For educational purposes only. Not legal advice. Contact us for a free, confidential consultation specific to your case.

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