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My Vape Pen is a Felony?

Updated: Apr 22, 2023


The short answer is yes, it is a felony to possess a THC Vape Pen in the State of Texas.


While it is legal to buy and possess a THC vape pen in many states, Texas is not one of them. In fact, if you get caught in Texas with a THC vape pen you can be in real legal trouble. This is because of how Texas Law defines what is and is not marijuana.


Texas Law defines marijuana (marihuana) as the plant sativa L., whether growing or not, the seeds of the plant, and every compound, manufacture, salt, derivative, mixture, or preparation of that plant or its seeds. However, Texas Law specifically excludes from this definition resin extracted from the plant and oil from the plant. See Texas Health & Safety Code Section 481 subsection 26.


Since the oil and/or resin is not considered marijuana in Texas, if you are in possession of it you are in possession of it, you can be charged with possession of a controlled substance in penalty grade 2 in Texas.


While possession of marijuana in Texas is usually a misdemeanor in small amounts, less than 2oz is a Class B Misdemeanor and 2-4oz is a Class A Misdemeanor, if you are found with a vape pen or even an edible it will be a felony, no matter the amount that you have on you.


In Texas if you are in possession of what could be classified as a controlled substance in penalty grade 2, such as a vape pen or edible the possible punishment ranges are as follows:


Less than a gram, is a State Jail Felony – 180 days to 2 years in State Jail and up to a $10,000.00 fine.


1 gram but less than 4 grams, is a Third-Degree Felony – 2-10 years in Texas Department of Criminal Justice (TDCJ) and up to a $10,000.00 fine.


4 grams but less than 400 grams, is a Second-Degree Felony – 2-20 in TDCJ and up to a $10,000.00 fine.


400 grams or more, is a First-Degree Felony – 5-99 in TDCJ or life and a fine up to $50,000.00.


As seen above it does not take being in possession of very much at all to be looking at serious time. It is also worth noting that the weight to determine what level of offense has been committed includes the weight of any adulterants or dilutants, meaning it is not just the weight of what actually contains the THC concentrate that you can be charged with.



If you have been arrested or charged with possession, please contact our office at (972) 330-2171 for a consolation.

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