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Brian Foley is a Criminal Defense attorney Former Chief Prosecutor in Montgomery and Harris County, Texas. All videos are for educational and entertainment purposes and do not constitute legal advice nor do they create an attorney client relationship. For more information visit www.brianfoleylaw.com

Are THC vape pens legal in Texas?

Find out everything you need to know right now. The short answer, I would say, is probably not. You risk getting arrested in places like Montgomery County, The Woodlands, Conroe, and many other locations in Texas, as arrests are being made for any vape pen containing a THC product or a cartridge.

If you possess a THC-related cartridge, whether it's Delta 8, 9, 10, or any variation, it doesn't matter; the police cannot conduct on-the-spot field tests to determine THC percentage. Consequently, they won't consider it less than the 0.03% content required for Cannabis sativa L, the marijuana plant. If you have a small amount of the plant in a baggie, it's a misdemeanor, a possession of marijuana case.

However, if you have THC in a distilled form like wax or a cartridge, you could be charged with a state jail felony, possession of a controlled substance in penalty group two, even if it's less than a gram. Most cases involve between one and four grams, leading to a third-degree felony charge with a punishment range of two to 10 years in prison.

A common question from those arrested is, 'I bought this at a store; how can they arrest me for it?' The complex administrative regulations around edibles and THC concentrate substances, coupled with stores having permission from the Agriculture Department in Texas, can protect sellers. However, if you're in your car without paperwork, they may assume you're using it to get high, leading to an arrest.

The potential challenge lies in questioning probable cause. If your case is eventually dismissed, individual challenges may be possible. Although statewide challenges are rare, young individuals with no criminal history often find themselves in this situation. THC vape pens, even those seemingly nondescript, can result in criminal charges, and even CBDs have tested positive for THC, leading to legal consequences.

My advice: don't mess with these things. Even if a product appears harmless, an arrest goes on your record. Even if the case is dismissed, a full expunction of records is necessary for it to be removed from your criminal record—a lengthy and expensive process. In summary, THC vape pens are not legal in Texas. If you value your record, it's best to avoid the risk.