In an attempt to hit marijuana offenders with two separate violations, a law in the state of Texas allows for a controlled substance to be taxed, even while it is illegal to possess under state law.

420times_000011580645XSmallBasically, drug dealers are supposed to pay a tax “when a dealer imports, manufactures, produces, acquires and/or possesses a controlled substance.”

For marijuana the tax comes in the form of The Texas Marihuna (that’s the spelling used by the state) Tax Stamps, which are printed with skull and cross bones as well as the iconic image of death.

And before you think no one would buy one, the program has generated about $26,000 in revenue since 2008, although some – like Lorena, TX city manager Billy Clemons, who helped draft the tax stamp law back in the day – thinks the stamps are being bought by collectors. The list of buyers is not available for public viewing.

But then the courts stepped in.

Growers and dealers are the intended targets but casual users are also required to pay up. The tax rate is set at $3.50 per gram. When calculated from the minimum amount of 4oz – a tax bill can start at about $400. Toss in a pound of pot and it hits almost $1,600.

It was reported, within the first five years of the law being on the books, the Comptroller’s Office issued more than $2-million in tax delinquency notices. But an unexpected court ruling turned the tables on the Stamp, as a result an unexpected loophole has been created. It came from the Texas Court of Criminal Appeals. The 5 to 4 ruling in 1996, determined that locking people up on a drug charge and also charging them a tax penalty amounted to double jeopardy.

“It’s double jeopardy, because the tax has nothing to do with anything but punishing people,” said the lead defense attorney in the above-mentioned case, Tom Moran.

“It’s provided an opportunity for people to pay their drug tax and avoid criminal prosecution or criminal punishment,” Moran went on to say.

In theory anyone can use the tax stamp defense if they are caught with marijuana and pay their way out of jail.

“Get a receipt [for your payment of the tax at the Comptroller’s Office], attach it to an application for a writ of Habeas Corpus for violation of the Double Jeopardy Clause and you can litigate, the Supreme court says you can litigate that pretrial. Post a bond and you can just walk out the door,” said Moran.

Bizarre laws abound in this country, and Texas seems to have more than its fair share of them.

– Joe Klare

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3 Responses

  1. John

    so where does this leave us @, is it illigal in Texas if you get cought you just pay the fee for the tax stamp then don’t have a criminal record or what? I have not read up on this defense before and have been targeted for sinthetic herbal smoking blends that are legal in Texas because the cops are so dumb and can not read “does not contain” (etc all the banned blends or the analogues of) since the cops/dea/etc do not want the legal blends available even though they are illegal and will arrest you for them, and mount large scale investigations into you for having legal blends of herbal incense, what options are there for Texas residence?

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