Years ago, I represented a fellow who decided to stuff stockings with a small bag of marijuana and give them to friends for Christmas. The case was not in Austin, and unfortunately for him, he was pulled over with the set of marijuana filled stockings in his backseat. The officer said he could smell the marijuana right away; when the officer saw the marijuana gifts stacked neatly on the backseat, he actually laughed.
Comedy aside, my client was arrested for Sale of Marijuana (Delivery of a Controlled Substance, in Texas). Clearly packaged as gifts, we had little use of the common defense "I plan on smoking all of it myself."
Luckily, Texas law recognizes there is a difference between marijuana being sold and marijuana being given away.
Texas Health and Safety Code Section 481.120, entitled OFFENSE: DELIVERY OF MARIJUANA, indicates that
"a person commits an offense if the person knowingly or intentionally delivers marijuana."The language in the code section above makes no distinction between how the marijuana is delivered; be it by selling, trading, or giving away. But more information about giving away marijuana is listed in subsection (b). which reads:
"An offense under Subsection (a) is a Class B misdemeanor if the amount of marijuana delivered is one-fourth ounce or less and the person committing the offense does not receive remuneration for the marijuana;"So not only must the marijuana be given as a gift without any type of remuneration -- which includes more than merely money -- the marijuana must also be a small amount.
What if a person gives away more than a 1/4 ounce of marijuana as a gift, and receives no remuneration ? Well, I assume the legislature didn't bother with that scenario, since it would seem uncommon for individuals to be handing out -- for free -- large amounts of marijuana. But, if a generous drug dealer did happen to be giving away larger amounts of marijuana, the conduct would be covered under the main statute. Remember, the code makes it illegal to 'Deliver' marijuana in general, and only provides the subsection above to mitigate against very small amounts being transferred. If you gave away larger amounts, you'd be on the hook for a Delivery of Marijuana offense.
A second interesting subsection makes selling small amounts of marijuana a misdemeanor. It's a Class A misdemeanor if the amount of marijuana delivered is one-fourth ounce or less and the person committing the offense receives remuneration for the marijuana.
If you end up giving away, trading, delivering, or selling any amount of marijuana more than 1/4 an ounce, the offense is a State Jail Felony, punishable between 6 months in the county jail and up to two years in the State Jail -- day for day credits. Larger amounts increase the level of felony, all the way up to first degree felony.
