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Decriminalization vs. Legalization. What’s the difference?

What is “decriminalization” and what does it mean for marijuana laws in Austin, Texas?

There’s been a lot of confusion about marijuana laws since the substance was “decriminalized” by Austin back in 2020. I’m going to try to clear it up with this post, but to be honest it can be confusing – even for lawyers and law enforcement.

Legalization is pretty easy to understand. That would mean that the act – in this case possessing marijuana – does not carry any kind of penalty. Of course there is nuance even here. For example, in some cases, marijuana is legal for medical purposes, but not recreational purposes. Or, small amounts may be legal, but large amounts might be illegal. In Texas, possessing ANY AMOUNT of marijuana is still illegal. This law has not changed.

Decriminalization is more complicated. This term can mean different things in different contexts, but generally refers to a decision by law enforcement not to enforce certain crimes. In 2020, Austin City Council asked police not to enforce arrests for small amounts of marijuana. This was widely touted as decriminalization, but police chief Brian Manley gave push back. Therefore there was no guarantee that you won’t get arrested for even small amounts of marijuana.

The situation was complicated further by a statewide law legalizing hemp. Because hemp is indistinguishable from marijuana without expensive testing, many people touted the new law as a de facto legalization. Again, this was an oversimplification, as District Attorneys such as Wes Mau in Hays County made clear that they were willing to spend the money to test the substance and prosecute marijuana possession.

It is important to realize that decriminalization – as it currently exists in Austin – is informal. A person can still be charged with possession of marijuana if the police so choose. Why is this important? Because marijuana possession is often used as probable cause for a search or arrest warrant when the police are investigating a more serious crime. Austin voters will have a chance to put decriminalization on the books in May 2022. But even then, the State law can take precedence, and there will still be the possibility of being arrested for marijuana possession.

Also, because it is not completely legal in Texas, there is no way to purchase weed from a licensed dispensary, however, there are retail stores where you can by CBD oil, Delta strains, THC-0, and other forms of THC that do create a high when consumed. Be careful with these substances because their legality is unclear, even though they’re being sold by a reputable retailer with a brick-and-mortar storefront. While you’re unlikely to be arrested within Austin city limits, law enforcement in other jurisdictions might have a different idea.

You’re have a good faith defense that you thought a product purchased at a store with official packaging is a legal substance. But ask yourself – what good will that do me when I’m arrested and spend the night in jail? Sure – you will get the case dismissed and can have it expunged. But you won’t get that night back that you sat in jail before posting bond. If you show a little caution and use a little common sense, you should be ok, but the risk is not zero.

Rob Chesnutt is an attorney at ATX Legal. He handles criminal defense in Travis, Hays and Williamson counties, and personal injury cases across Texas. This blog post is for educational purposes only and is not legal advice. If you would like legal advice for your specific issue, you can call us at 512-677-5003, or visit atx.legal to set up a free case evaluation.

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