TWEAYTORNEY GENERAL 

OF TEXAS 

AUSTIN. Tms 78711 

March 18. 1974 

The Honorable V. Murray Jordan 

District Attorney 

198th Judicial District 

107 East Main Street 

Brady, Texas 76825 

Opinion No. H- 262 

Re: Trial of marihuana possession 

offenses alleged to have been 

committed before the effective 

date of the Texas Controlled 

Dear Mr. Jordan: Substances Act. 

You have asked whether the county court may try a case involving 

the offense of possession of less than four ounces of marihuana when the 

alleged offense occurred prior to August 27, 1973, the effective date 

of the new Texas Controlled Substances Act. 

Formerly, possession of any amount of marihuana was a felony. 

Acts 1937, 45th Leg., ch. 169, p. 333 (formerly, Vernon’s Texas Penal 

Code, Art. 725b). From and after August’27, 1973, possession of 

four ounces or less of marihuana is a misdemeanor. Texas Controlled 

Substances Act [hereinafter referred to as the Act], Vernon’s Texas 

Civil Statutes, Article 4476-15, Sec. 4.05. Offenses committed before 

August 27, 1973, but tried after that date are controlled by Sec. 6.01 of 

the Act which provides in part: 

“(a) Except as provided in Subsections (b) and (c) of 

this section, this Act applies only to offenses committed 

on and after its effective date, and a criminal action 

for an offense committed before this Act’s effective 

date is governed by the law existing before the effective 

date, which law is continued in effect for this purpose, 

as if this Act were not in force. For purposes of 

this section, an offense is committed on or after the 

effective date of this Act if any element of the offense 

occurs on or after the effective date. 

,I 

. . . 

p. 1227 
The Honorable V. Murray Jordan, page 2 (H-262) 

“(c) In a criminal action pending, on appeal, or 

commenced on or after the effective date of this 

Act, for an offense committed before the effective 

date, the defendant, if adjudged guilty. shall be 

assessed punishment under this Act if he so elects 

by written motion filed with the trial court requesting that the, court sentence him under the provisions of this Act. I’ 

Although Sec. 6.01(c) has been declared unconstitutional insofar 

as it applies to actions in which a conviction was being appealed on 

or after August 27, 1973, the provisions of the section relating to 

actions awaiting trial on the effective date of the Act were not 

affected, Ek parte Giles, 502 S. W. 2d 774 (Tex. Crim. App. 1973). 

Thus. pre-August 27, offenses are to be tried under the old 

felony statute, but the potential punishment may be .of either ,felony 

or misdemeanor status, at the option of the defendant. If ths quantity 

involved is four ounces or less, and if the defendant elects to be 

sentenced under the provisions of the new Texas Controlled Substances 

Act, any conviction necessarily is a misdemeanor conviction. Jones 

v. State, 502 SW. 2d 771 (Tex. Crim.App.: 1973). 

The county courts have original jurisdiction of ,misdemeanors 

in which the potential punishment exceeds a fine of two hundred dollars. 

Vernon’s Texas Code of Criminal Procedure, Article 4.07. District 

courts have original jurisdiction in felony cases. Texas Constitution, 

Article 5, Sec. 8; Vernon’s Texas Code of Criminal Procedure, 

Article 4. 05. 

A marihuanapossession offense alleged to have occurred prior 

to the effective date of the Texas Controlled Substances Act must 

be treated as a felony unless and until the defendant elects to be 

sentenced under the provisions of the Act. 

Although the Court of Criminal Appeals has not yet indicated 

whether the jurisdiction of the district court is always exclusive in 

pre-August 27 marihuana possession cases, it has held that the 

district court retains jurisdiction even when a motion to be sentenced 

under the new Act has been filed prior to trial. Jones v. State, supra. 

p. 1228 
The Honorable V. Murray Jordan, page 3 (H-262) 

Since, the district court is the court in which the motion must 

be filed, and as Sec. 6.01(c) requires the motion to be filed in the 

trial court, we believe that the Act contemplates trial of pre-August 27 

offenses in the district court. 

Another factor leading to the conclusion that the district court is the 

proper court in which to prosecute these cases, is the inability of the 

county court to enter a felony conviction. There is a possibility that 

the defendant will not elect to proceed under the new Act or if he has 

filed an election to so proceed, there is a possibility that his motion 

may be withdrawn. If a felony conviction must be entered, it is 

necessary that the case be in the district court. 

Although we cannot say categorically that a misdemeanor conviction 

for a pre-August 27 marihuana possession offense entered by a county 

court would be invalid in all cases, it is our opinion that prudence and the 

language of the statute indicate that these cases be tried in the district 

court. 

SUMMARY 

Trial of marihuana possession offenses alleged 

to have been committed prior to August 27, 1973, 

should be in the district court. 

Very truly yours, 

Attorney General of Texas 

DAVID M. KENDALL, Chairman 

Opinion Committee 

p. 1229