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Marijuana Arrests in Texas in 2018: Federal Law vs State Statute

Marijuana Enforcement: that’s the subject of the January 4, 2018, memo that the United States Attorney General, Jefferson B. Sessions III, sent to all the United States Attorneys in this country last week.  Every single federal prosecutor got the one-page memo from their boss; you can read it online in its entirety.

What’s the big deal, from a criminal defense perspective?  In one page, marijuana becomes a Big Crime — again. 


What Does Session’s Marijuana Enforcement Memo Instruct Federal Prosecutors to Do?

Referencing the Controlled Substances Act, AG Sessions notes that marijuana is illegal (cultivation, distribution, possession) and that there are “significant penalties” for violating federal marijuana laws.  He also points out that marijuana charges often dovetail with other charges, including money laundering laws, the violations of the “unlicensed money transmitter statute,” and the Bank Transfer Act.

These statutes reflect Congress’s determination that marijuana is a dangerous drug and that marijuana activity is a serious crime,” Sessions writes.

Next: the boss’s instructions to his prosecutors.  They are told to “follow the well-established principles that govern all federal prosecutions.”  He references Chapter 9-27.000 of the U.S. Attorneys’ Manual.

For more on the principles that prosecutors are to follow, read our earlier discussion in “Prosecutors Have Standards to Follow: the Federal Principles of Prosecution.”

Sessions instructs the prosecutors to consider “all relevant considerations” including specifically the following:

  • Federal law enforcement priorities that Sessions has set;
  • Seriousness of the crime;
  • Deterrent effect of the prosecution;
  • Cumulative impact of particular crimes on the community.

And here’s the key sentence in the memo, explaining that first “relevant consideration” – Sessions directs his underlings that: “[g]iven the Department’s well-established general principles, previous nationwide guidance specific to marijuana enforcement is unnecessary and is rescinded, effective immediately.”

Federal Prosecutors to Enforce Federal Marijuana Laws Regardless of State Position on Pot

So, the top prosecutor of federal criminal laws has rescinded the old office policy and now, federal agents and prosecutors are back on the hunt for marijuana arrests.  What about the eight states (and District of Columbia) that have legalized pot for recreational use?  Not to mention approximately half the states allowing medical marijuana (or its extract)?

And hitting here, closer to home, what does this mean for the new Dallas Cite and Release policy for pot possession? 

For details on that new marijuana policy effective in Dallas, read Got Marijuana? What You Need to Know About the Dallas “Cite and Release” Rule.

Bottom line, state and local laws don’t impact the federal laws one bit.  If the federal prosecutors want to go forward with marijuana arrests, then they will do so based upon the separate federal criminal statutes (e.g., the federal Controlled Substances Act).  Federal law exists independently of Texas law, county code, or municipal ordinance.

This is a huge mess for states like Colorado, where they have a growing marijuana market.  Needless to say, people in states where pot has been legalized are (pardon the pun) fired up.  Read, for instance, the article by Thomas Fuller published on January 4, 2018, by the New York Times entitled, “California Defiant in Face of Federal Move to Get Tough on Marijuana.”  California’s state statute legalizing marijuana was effective on January 1st, and three days later the Sessions memo was released.

Texas and the Sessions Memo on Enforcing Federal Marijuana Laws

But what about Texans who use, grow, or sell pot?  First, let’s consider the marijuana laws that apply to Texans.

1.  Recreational Use of Pot in Texas

Marijuana is illegal in Texas for recreational use.  So, if you are in possession of marijuana here in Dallas, Fort Worth, or the rest of the Lone Star State, you are violating state and federal law.  You’re risking arrest on drug charges under both criminal codes.

It doesn’t matter if you legally bought some marijuana over in Colorado.  Tote that toke over the state border and you’re risking arrest.

2.  Medical Marijuana in Texas

However, there is a policy here in Texas for medical marijuana.  In 2015, state laws were passed to allow companies to make cannibidiol oil (CBD) for sale to epilepsy patients.  It’s a narrow market with lots of regulations, but it’s a beginning for the Texas medical marijuana market.  Last year, a handful of companies were approved to grow marijuana for use in making this cannabis oil.

As Stephen Paulsen points out in his article for the Houston Press, Texas doctors may have a concern here if they go ahead and prescribe marijuana under this perfectly legal Texas program.  If that Texas physician does so in 2018, he is technically violating federal statutes that make him vulnerable to investigation and arrest by the local U.S. Attorney General’s office.  A  minor point, but given the way that the feds are targeting doctors these days, it’s something to think about if you’re a physician here in Dallas or Fort Worth.

And as the Dallas Observer points out in a piece by Stephen Young entitled “Texas Cannabis Growers Worried, But Not Too Worried, About Sessions Push-Back on Pot,” the new Sessions’ memo may harm this fledging marijuana market here in Texas.  No one knows right now if the federal authorities are going to try and block this new CDB Oil industry here in Texas.  Even if the ultimate result is harming the epileptic patients who need this stuff.

Follow the Money.  

Ron Paul takes the position that the Sessions’ position is unconstitutional and impossible to implement.  And he makes it clear what many think will be the ultimate deciding factor here: money.  All those states with recreational pot statutes?  They are making lots of tax revenue from this new marijuana industry.  Tax dollars they don’t get in a black market operation.

And, there are profits (lots of profits) to be made in medical marijuana alone.  See, New Medical Marijuana Lawsuit Filed Against Attorney General, DOJ, and DEA.

So, what does this mean for the risk of arrest for pot in Texas?

Federal prosecutors have been told by their boss that they are to go after marijuana charges.  So, there may be some federal prosecutions in Texas that include marijuana violations of the Controlled Substances Act.

However, for the most part those folk here in Dallas, Fort Worth, and North Texas who smoke pot recreationally or who are in the business of distribution or sale, things remain the same because their actions are illegal and place them under the risk of arrest already under state statutes.

For more on marijuana charges here in Texas, read:


For more information, check out our web resources, read Michael Lowe’s Case Results, and check out his discussion in ”Conspiracy to Distribute Controlled Substances.”







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