Texas Tax on Marijuana Could Lead to Avoidance of Jail Time

ID-10095028.jpgA recent investigation by Fox 7 of Austin, Texas has discovered that a legal loophole may exist which would allow a person caught with more than 4 ounces of marijuana to argue successfully against imprisonment. This possible loophole arises by Texas having a Marijuana Tax Law in place which taxes marijuana at $3.50 an ounce, with a minimum of 4 ounces needed. Because the tax on the substance was enacted to provide an additional punishment to those criminally charged with possession, in 1996 the Texas Court of Criminal of Appeals, in Stennett v. State, stated that both criminal and tax penalties violate double jeopardy (the idea that a defendant cannot be tried twice for a crime for which he has been acquitted) and thus Stennett was set free.

According to the Fox 7 investigation, if a defendant charged with possession pays the marijuana tax at the Texas Comptroller’s office, gets a receipt, attaches it to an application for a writ of Habeas Corpus for violation of the Double Jeopardy Clause, he may be released from criminal prosecution, as Stennett was in the 1996 court decision.

Since 1996 court decision however, two legal developments could make using the tax loophole more complicated. First, in the subsequent case of Ex Parte Ward, the court ruled that a partial payment of the marijuana tax is not enough for a defendant to argue double jeopardy, even though in Stennett v. State a partial payment was enough. Second, a Texas Attorney General Opinion in 1999 stated, in his view, once a defendant has been charged with the crime of possession, the Comptroller may not thereafter attempt to collect the marijuana tax. If Comptroller does not attempt to enforce Texas tax law regarding marijuana, the Texas Attorney General believes the defendant would avoid a tax penalty so double jeopardy will not apply.

It is not certain however whether the Comptroller can abandon his or her duty to collect lawful state taxes just because a government lawyer’s opinion says so. Measures can be taken by private attorneys to force a government agency to follow the dictates of the law, such as using a “writ of mandamus“.

As written about before, Texas has a great need for new sources of state income, as well as a need to reduce government spending in certain areas. From my perspective, the 1996 Court decision gave Texas a wonderful opportunity to fulfill both needs. By taxing adults who use marijuana for industrial, medicinal or recreational purposes, Texas would gain more revenue to pay for its obligations like educating children or funding police departments. If the payment of the tax could prevent adult marijuana users from being criminally processed and imprisoned, Texas could save a large amount of money by not having to pay for items like prosecutions, court fees, and living costs for nonviolent offenders who are imprisoned.

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Gilbert Garcia has been Passionately Pursuing Justice for over 30 years and founded The Gilbert G. Garcia Law Firm in 2008. The Gilbert G. Garcia Law Firm is a boutique law firm, specializing in Criminal Defense. Gilbert represents adults and juveniles accused of a crime and who have with a felony, misdemeanor or record cleaning case. Conveniently located on the courthouse square to serve Montgomery and Walker Counties. Gilbert became Board Certified in Criminal Law by the Texas Board of Legal Specialization in 1989. The Gilbert G. Garcia Law Firm is located at 220 N. Thompson St., Suite 202, Conroe, TX 77301.  www.ggglawfirm.com.

Drug Related Charges may include: Possession of Marijuana, Possession of Controlled Substance, Possession of Dangerous Drug, Manufacturing a Dangerous Drug/Controlled Substance, Delivery or Intent to Deliver Marijuana/Dangerous Drug/Controlled Substance, Possession of Drug Paraphernalia and many other drug related charges.

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