The criminal penalty for possessing small amounts of marijuana would be reduced under a bill passed by the Texas House

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The Texas House passed a bill 88-40 Friday that would lower the criminal penalty for possessing small amounts of marijuana and provide a path for many Texans charged with such a crime to expunge it from their criminal records. The bill applies to possession of 1 ounce or less.

Currently in Texas, possession of up to 2 ounces of marijuana is a Class B misdemeanor, which can be punishable by up to 180 days in jail and a $2,000 fine. House Bill 441, authored by state Rep. Erin Zwiener, D-Driftwood, would reduce possession of 1 ounce or less to a Class C misdemeanor, which carries no jail time. Police also wouldn’t be allowed to make arrests for possession at or under an ounce.

In a committee hearing, Zwiener said the language had been worked on with Gov. Greg Abbott’s office and praised the “bipartisan conversation” over reducing possession penalties.

In an interview with The Texas Tribune, Zwiener credited much of the work on "striking a balance" to state Rep. Joe Moody, D-El Paso, who proposed a similar penalty reductions last session. Zwiener said Abbott has made no firm commitments to sign the bill if it reaches his desk, but felt encouraged by his previous comments supporting the change to a Class C misdemeanor.

The real obstacle, she said, would be the Senate. When the House passed Moody's legislation in 2019, Republican Lt. Gov. Dan Patrick opposed it and quickly declared it dead in the upper chamber. Patrick’s office did not immediately respond to a request for comment.

Several Texas prosecutors and law enforcement agencies have already stopped arresting and prosecuting people found with small amounts of marijuana on their first offense. A 2021 University of Texas/Texas Tribune Poll found that 60% of Texas voters believe possession of small or large amounts of marijuana should be legal for whatever purpose.

HB 411 is one of many attempts to lower the criminal penalties for marijuana possession statewide. Ten bills in the Legislature address the issue, but only one other bill has made it out of committee. House Bill 99 would get rid of arrests and driver's license suspensions for marijuana possession only punishable by a fine. Its author, Rep. Steve Toth, R-The Woodlands, is a notable conservative who told the House Criminal Jurisprudence Committee that he did not support decriminalization or legalization, but nevertheless believes the racial disparity in marijuana arrests must be addressed.

According to a 2020 report by the American Civil Liberties Union, Black Texans were 2.6 times more likely to be arrested for marijuana possession in 2018 than white Texans despite similar usage rates nationwide. In both 2018 and 2019, about 30% of those arrested for marijuana possession in Texas were Black, despite the state population being 12% Black.

Class B misdemeanors carry other penalties, such as preventing someone from obtaining a firearm license for five years and automatic driver's license suspension. Lowering the charge to a Class C misdemeanor and allowing for record expungement would also eliminate the barriers and stigma associated with having a criminal record when a person applies for jobs and financial assistance.

Marijuana possession charges have also gotten more complicated since the Legislature legalized hemp and hemp-derived products — such as CBD oil — last session. Difficulty differentiating between legal hemp and illegal marijuana led to a drop in the number of low-level possession charges in the state. In 2019, the Texas Department of Public Safety reported more than 45,000 arrests for possession of marijuana — a decrease from the nearly 63,000 reported arrests in 2018. In July of 2019, the department issued a memo instructing DPS officers to issue citations, rather than make arrests, for possession of less than 4 ounces of marijuana.

Disclosure: The University of Texas at Austin has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.