Can a Texas Marijuana Arrest Be Expunged or Sealed in 2026? Post-Hemp, Compassionate-Use & the HHC Loophole
Texas is one of the last states in the country where simple marijuana possession is still a criminal offense. The consequence: tens of thousands of Texans carry possession arrests and convictions that no longer mirror how the rest of the country handles the same conduct. The 2019 hemp law dropped a wave of dismissals on small-quantity cases, city ordinances in Austin and Denton complicated enforcement, and the cannabinoid-isomer market created an entirely separate gray zone. Underneath all of it, the question is the same: can this record be cleared?
- Recreational marijuana is still illegal in Texas under Health & Safety Code §481.121 in 2026 — the federal hemp/THC distinction is what changed, not state criminal possession law.
- HB 1325 (2019) triggered a wave of small-quantity dismissals because the State couldn’t prove the substance wasn’t hemp without lab tests. Dismissals are expunction-eligible — but the petition still has to be filed.
- Convictions can sometimes be sealed under §411.0735 or §411.0736, depending on the offense level and whether the case ran through straight community supervision.
- Expunction lifts the state firearm/LTC bar; nondisclosure does not, because DPS still sees the sealed record for licensing purposes.
- The federal firearm bar under 18 U.S.C. §922(g)(3) and federal immigration consequences are not reached by either Texas remedy.
- The HHC/Delta-8 loophole is closing fast: SB 3 (2025) was enjoined; case-by-case enforcement varies and the marijuana-vs-hemp testing problem still drives many post-arrest dismissals.
We file marijuana expunctions and nondisclosures in every major Texas metro most weeks of the year. The cases divide roughly into three buckets: HB 1325-era dismissals that never got cleared, older convictions where the client wants to know about §411.0735 sealing, and recent arrests tied to HHC or Delta-8 products that may or may not be prosecutable at all. Each bucket has its own analysis.
1. The Texas Marijuana Status in 2026
The Texas marijuana picture in 2026 is best understood as three overlapping layers.
Federal law. The 2018 Farm Bill removed hemp — cannabis plant material with under 0.3% delta-9 THC by dry weight — from the federal Controlled Substances Act. Texas conformed in 2019 via HB 1325. Everything else cannabis-related remains federally controlled.
Texas medical law. The Texas Compassionate Use Program (Occupations Code Ch. 169) permits a registered patient with a qualifying condition to receive low-THC cannabis from a licensed dispensary. SB 339 (2015) established the framework; subsequent expansions added PTSD, terminal cancer, and other conditions. Registered patients are generally insulated from prosecution for the prescribed product. The program does not cover unprescribed recreational use of any THC product.
Texas recreational law. Simple marijuana possession remains a criminal offense under Health & Safety Code §481.121. The penalty tiers haven’t changed since 2003. What did change: prosecutors can no longer prove the substance is marijuana versus legal hemp without quantitative lab testing for delta-9 THC concentration. Lab capacity at DPS and many county labs has been a chronic bottleneck since 2019.
For record-clearing purposes the practical reality is this: a lot of arrests from 2019 onward resolved in dismissal because the State couldn’t fund the lab work to meet its burden. Those arrests sit on the record until someone files the expunction.
2. Penalty Tiers and What They Mean for Clearing
§481.121 sorts marijuana possession by weight. The tier drives both the available record-clearing remedy and the waiting period.
| Tier | Quantity | Offense Level |
|---|---|---|
| (b)(1) | Two ounces or less | Class B misdemeanor |
| (b)(2) | Two to four ounces | Class A misdemeanor |
| (b)(3) | Four ounces to five pounds | State jail felony |
| (b)(4) | Five to 50 pounds | Third-degree felony |
| (b)(5) | 50 to 2,000 pounds | Second-degree felony |
| (b)(6) | Over 2,000 pounds | First-degree felony (life) |
Delivery and possession-with-intent are charged under §481.120 with their own enhanced tiers. THC concentrates (waxes, oils, edibles, gummies) are not charged under §481.121 — they fall under §481.113 (Penalty Group 2 controlled substance) and carry felony exposure starting at the smallest measurable quantity. This distinction matters enormously and traps DIY filers regularly.
A vape cartridge, a tincture, or a single THC gummy charged in Texas is almost always a Penalty Group 2 case, not a §481.121 case. The expunction analysis still works the same way, but the underlying offense classification, limitations period, and nondisclosure subsection are different. Confirm the actual charging statute before assuming the misdemeanor framework applies.
3. The HB 1325 Hemp-Dismissal Wave
When HB 1325 took effect on June 10, 2019, it accomplished something most legislators did not anticipate: it made simple marijuana possession dramatically harder to prosecute. Because plant material from hemp and marijuana is visually and olfactorily indistinguishable, and because the only legally meaningful distinction is the delta-9 THC concentration, prosecutors suddenly needed quantitative lab testing on every contested misdemeanor case.
Lab capacity at DPS and county forensic labs could not keep up. Counties responded in different ways. Dallas and Bexar DAs announced they would no longer prosecute first-time misdemeanor possession under four ounces. Harris County shifted to a cite-and-release model. Travis County briefly stopped accepting misdemeanor possession filings altogether. Smaller counties continued to file but watched their dismissal rates climb above 60% within two years.
The result is a population of Texans with dismissed §481.121 cases from 2019, 2020, and 2021 that are now eligible for expunction — if they file. Two-year limitations have long since run on misdemeanor cases from that era, which means the wait is over for almost everyone.
How to know if you have an HB 1325 dismissal
Pull the district or county clerk’s disposition record for the case. If the disposition reads “dismissed,” “dismissed by State,” “motion to dismiss granted,” or “refused by State,” the case is expunction-eligible under art. 55A.053 (or art. 55A.052 if the arrest never produced a filed charge). The reason code on the dismissal does not change the eligibility — a dismissal is a dismissal for Chapter 55A purposes.
4. Austin Prop A and the City Depenalization Trap
In May 2022 Austin voters passed Proposition A, which directed Austin Police Department to deprioritize enforcement of low-level marijuana possession and decline most cite-and-release. Several other cities (San Marcos, Killeen, Denton, Elgin) passed similar measures. The Texas Attorney General has challenged the validity of those ordinances and litigation has been ongoing — with the Texas Supreme Court ruling on aspects of the preemption question in 2024.
Two record-clearing implications for someone arrested in one of these cities:
- If your arrest occurred before the city ordinance took effect, the ordinance does not retroactively clean your record. The arrest still happened under §481.121; the filing path is still expunction or nondisclosure.
- If you were cited or arrested after the ordinance but the case was nonetheless filed and resolved, you may have a dismissal on the books from a county DA who declined to prosecute under the city ordinance — eligible for expunction once limitations runs.
Critically, a city ordinance does not create an automatic expunction. Even if APD never arrested you, if a record exists in the clerk’s file, it sits there until somebody files the petition to remove it.
5. The HHC / Delta-8 Loophole and Where It Stands
The 2018 Farm Bill defined “hemp” by delta-9 THC concentration. Producers responded by chemically converting legal hemp-derived CBD into delta-8, delta-10, THC-O, HHC, and other intoxicating cannabinoid isomers that fall outside the literal definition. Texas DSHS attempted to ban delta-8 in 2021; an Austin district court enjoined the rule; litigation continues. SB 3 in the 2025 regular session would have banned all consumable hemp products containing more than trace cannabinoids; the bill passed but was vetoed and the subsequent special session attempt was enjoined pending challenge.
For practical record-clearing purposes:
- Arrests for plant material continue to face the marijuana-vs-hemp testing burden. Lab capacity remains the bottleneck.
- Arrests for cartridges, edibles, and gummies bypass that issue because they are charged under §481.113 as Penalty Group 2 substances regardless of whether the THC was delta-9 or a converted isomer. These cases are usually felonies.
- The legal status of HHC and Delta-8 product possession is in flux. A possession charge for retail-purchased HHC product may be dismissable on substantive grounds; if it is dismissed, the resulting arrest is expunction-eligible after the limitations period.
Old marijuana case from the 2019–2021 dismissal wave?
If your case was dismissed because the prosecutor couldn’t prove it wasn’t hemp, the arrest is sitting on your record waiting for you to clear it. We file these in every Texas metro on flat-fee pricing — and the limitations wait has long since run for most callers.
6. When a Marijuana Arrest Can Be Expunged
Chapter 55A applies the same expunction framework to marijuana arrests as to any other criminal arrest. Four common pathways:
Dismissed or no-billed §481.121 case
Most common path. After dismissal, file under art. 55A.053 once the limitations period runs. For misdemeanor possession (under four ounces) that is two years from the offense date. For state jail felony possession (four ounces to five pounds) the wait follows the general felony catch-all under art. 12.01(11) and is typically three years. Larger-quantity felony cases follow the standard or fraud-tier limitations schedules.
Acquittal at trial
A jury verdict of not guilty creates an immediate right to expunction under art. 55A.002. Rare in marijuana cases but not unheard of.
Arrest without a filed charge
A cite-and-release arrest, or a custodial arrest where the DA never filed information, is governed by art. 55A.052. The wait is one year from the arrest date for a misdemeanor marijuana arrest and three years for a felony.
Class C deferred
Class C marijuana cases (typically paraphernalia under §481.125) that completed Class C deferred adjudication are immediately expunction-eligible under art. 55A.051 on discharge.
If your marijuana arrest happened alongside another charge that resulted in a conviction (open container, unlawful carry, fleeing on foot), art. 55A.151 may bar expunction of the marijuana arrest even after a clean dismissal. We see this pattern often in traffic-stop arrests where the marijuana case was dismissed but a related driving-while-license-suspended conviction sticks. The shared booking sheet anchors the whole arrest record.
7. When a Marijuana Conviction Can Be Sealed
For convictions, sealing under Government Code Chapter 411 is the remedy. The subsection depends on how the case resolved.
Deferred adjudication discharged successfully
A completed misdemeanor deferred adjudication under Art. 42A.111 routes to a §411.072 nondisclosure (automatic in some cases, by petition in others). Misdemeanor deferreds have no post-discharge waiting period in the standard case. Felony deferred adjudication for marijuana routes to §411.0725 with a five-year post-discharge wait.
Conviction with successful community supervision
A misdemeanor §481.121(b)(1) or (b)(2) conviction that was probated and completed is sometimes sealable under §411.0735 after a two-year post-completion wait. Felony marijuana convictions follow §411.0736 with a five-year wait, and many felony marijuana convictions are not sealable at all (state jail felonies with affirmative findings, deliveries to minors, school-zone enhancements).
Conviction with jail sentence
A straight conviction with a jail sentence (no community supervision) is generally not sealable under Chapter 411. Pardon is the only meaningful remedy and is rare for marijuana possession in Texas.
8. Firearms, LTC, and Immigration Consequences
Marijuana record clearing has consequences beyond background checks. Three deserve attention.
Texas LTC (License to Carry)
A marijuana conviction within the last five years disqualifies an applicant for the Texas LTC under Gov’t Code §411.172. Expunction lifts the bar entirely because the record is destroyed and no longer visible to DPS. Nondisclosure does not lift the bar because DPS continues to see the sealed record for licensing purposes — that’s baked into the statute.
Federal firearm law
18 U.S.C. §922(g)(3) makes it a federal felony for an unlawful user of a controlled substance to possess a firearm. The ATF and DOJ have interpreted this to reach current marijuana users even in states where state law permits recreational use. Texas record clearing does not lift this federal prohibition; the question is whether you are currently a user, not whether you were ever convicted. Recent Fifth Circuit litigation has narrowed the reach of §922(g)(3) but it remains in force.
Immigration
Federal immigration law treats marijuana convictions harshly. Even a single conviction for simple possession can trigger inadmissibility and deportability. Expungement under state law does not erase a conviction for immigration purposes — that is settled law under Matter of Roldan. Nondisclosure provides no immigration benefit. Dismissed cases, on the other hand, were never convictions to begin with and present a substantially better posture. If immigration consequences matter, coordinate the state record-clearing analysis with an immigration attorney before relying on it.
9. Five Mistakes That Kill DIY Marijuana Petitions
- Calling a concentrate case a marijuana case. Vape cartridges, edibles, and gummies are Penalty Group 2 (§481.113) felonies. The petition has to cite the right charging statute or the court will reject it.
- Filing on the wrong limitations clock. The two-year misdemeanor clock runs from the offense date, not the arrest date or the dismissal date. We see petitions filed several months early on this point.
- Treating an HB 1325 dismissal as automatic. The dismissal does not automatically purge the arrest record. The expunction petition still has to be drafted, filed, and served on every agency.
- Forgetting that cite-and-release still produces a record. Even when no one was booked into county jail, the cite created an arrest record that lives at the arresting agency. Cite-and-release cases require the same Chapter 55A treatment as custodial arrests.
- Assuming Texas relief reaches federal databases. NCIC will purge once DPS forwards the order, but federal immigration and firearm analyses look past expungement. Coordinate the analysis if either consequence matters.
10. Frequently Asked Questions
No. Recreational marijuana possession remains a criminal offense under Health & Safety Code §481.121. Limited medical use is permitted through the Compassionate Use Program for registered patients with qualifying conditions. The 2019 hemp law (HB 1325) made many marijuana cases harder to prosecute but did not legalize recreational use.
Yes. A dismissed, no-billed, or acquitted §481.121 case is eligible for expunction under Chapter 55A once the limitations period on the underlying offense expires — two years for misdemeanor possession, longer for felony delivery or larger-quantity possession.
No. HB 1325 caused prosecutors to dismiss thousands of small-quantity cases because they couldn’t prove the substance was marijuana versus legal hemp without lab testing. The dismissals were widespread, but they did not automatically expunge anyone’s arrest record. You still have to file the petition.
Sometimes. A misdemeanor §481.121(b)(1) or (b)(2) conviction that completed straight community supervision is potentially sealable under §411.0735 after a two-year wait. Felony marijuana convictions follow §411.0736 with longer waits, and many are excluded entirely. Deferred adjudications follow their own subsection (§411.072 or §411.0725).
Yes — expunction destroys the underlying record and lifts the §411.172 bar. Nondisclosure does not, because DPS continues to see the sealed record for licensing purposes. If LTC eligibility matters, the expunction path is the one to push for.
For a dismissed arrest, generally yes — the dismissed case was never a conviction for immigration purposes anyway, and expunction destroys the underlying state record. For a marijuana conviction, expungement under state law does not erase the conviction for federal immigration purposes under Matter of Roldan. Coordinate with an immigration attorney before relying on any state record-clearing remedy.
Plant-material arrests of any cannabinoid product still face the marijuana-vs-hemp testing problem at the DA’s office. Cartridge, edible, and gummy arrests are typically charged as Penalty Group 2 felonies under §481.113, regardless of whether the THC was delta-9 or a converted isomer. The legal status of consumable HHC and Delta-8 products is in active litigation in 2026. If your case is dismissed, the resulting arrest is expunction-eligible after the limitations period.
Bottom Line
Texas marijuana record clearing is unusually accessible right now — not because the underlying law changed, but because the prosecution math changed. The HB 1325 testing burden produced years of dismissals that are now sitting unfiled on people’s records. The Compassionate Use Program shields a defined patient population. The HHC and Delta-8 litigation is ongoing and likely to produce more dismissals before it produces convictions. Through all of that, Chapter 55A and Chapter 411 still control how a case ends up on a background check.
If you have a dismissed possession case from 2019 forward, the limitations clock has almost certainly run. If you have an older conviction, the §411.0735 or §411.0736 wait is usually the gating question. Either way, the record doesn’t get cleared by waiting; it gets cleared by filing.
This article is general information about Texas record-clearing law, not legal advice. Marijuana cases interact with federal firearm, immigration, and professional licensing law in ways that are highly specific to individual circumstances. Statutes and 2025 session changes referenced above reflect Texas law as of May 17, 2026.
Clear an old marijuana case — today.
Tell us the offense date, the disposition, and the county. We’ll tell you whether you’re looking at expunction, §411.0735 sealing, or a different conversation entirely. No cost. No pressure.
Tell us about your marijuana case
Share a few quick details and our team will follow up to confirm your eligibility for Texas marijuana record clearing — usually within one business day.
By submitting this form you agree to be contacted by Wyde & Associates PLLC about your matter. Submissions are confidential. This form does not create an attorney-client relationship.