The vape pen and green-leaf forms of THC are now charged as felonies in any amount. A drink, edible, or tincture under 0.3% delta-9 THC is the narrow remaining legal category.
No green-leaf or vape-pen form of THC is currently treated as legal in Texas. The two most common ways people use THC, whether Delta-8, Delta-9, or Delta-10, are the vape pen and green-leaf flower, and both are now charged as felonies without exception. It is easier to state what remains legal: a drink, edible, or tincture containing less than 0.3% Delta-9 THC.
What changed was not the possession statute. Senate Bill 3, which would have banned THC products outright, was vetoed in June 2025, so the Chapter 481 penalty structure was not rewritten. What changed is a Texas Department of State Health Services rule, effective March 31, 2026, that altered how hemp is tested, now counting total THC, meaning delta-9 and THCA combined, against the 0.3% threshold rather than delta-9 alone. Because THCA converts to delta-9 when heated or smoked, that reclassifies many previously compliant hemp flower products as marijuana or THC concentrate under the existing law. That rule is reportedly facing legal challenges, so this page is current as of August 29, 2026 and is subject to change.
The penalties scale with amount. Less than one gram is a state jail felony, carrying 180 days to two years in a state jail facility and a fine of up to $10,000. One to four grams is a third-degree felony, two to ten years. Four to four hundred grams is a second-degree felony, two to twenty years. More than four hundred grams is a first-degree felony, five to ninety-nine years. Probation may still be available at any of these levels.
Possession is charged regardless of whether the product was purchased legally at the time. That is the part that catches most people, because they bought something at retail that can now support a felony charge. If you are unsure whether a THC product you own is legal, the safe assumption is that it is not.
The firm has handled several cases where someone purchased green-leaf THC that was legal at the time and was then pulled over. An officer has no way to confirm in the field what kind of green-leaf substance it is, so the person is arrested anyway. They bond out, hire an attorney, and go to court to argue the substance was legal. The district attorney's office has to pay to test it, and if the test comes back legal, the case is dismissed. By then the accused has already been through arrest, booking, and posting bail.
One client in San Antonio was arrested under the new testing standard three hours after it took effect, for a product she had legally purchased at a store less than 48 hours earlier. Ignorance of the law is never a defense, but that timeline shows how abruptly this shifted.
We expect this to generate significantly more THC cases across every Texas jurisdiction. Because possession is charged as a felony, law enforcement has far less discretion to do anything other than arrest. Previously, depending on the product and the jurisdiction, cite-and-release was sometimes used instead, and lower-level THC possession was sometimes not prosecuted at all. Prosecutors also have less discretion than they did. More products are covered and fewer cases are being passed over, which means more arrests and more prosecutions statewide.
Citation: Texas Health & Safety Code §481.121 (plant marijuana); §481.116 (THC concentrate, Penalty Group 2 as defined in §481.103)
Degree and classification: Marijuana: Class B misdemeanor at two ounces or less, up to a first-degree felony at 2,000 pounds or more. THC concentrate: state jail felony under one gram, up to a first-degree felony at 400 grams or more.
Statutory language: A person commits an offense if the person knowingly or intentionally possesses a usable quantity of marihuana under §481.121, or a controlled substance listed in Penalty Group 2 or 2-A under §481.116, with weight calculated including adulterants and dilutants.
Past results do not guarantee or predict a similar outcome in any future case. Every case is decided on its own facts.