What is the Harris County District Attorney’s Office “First Chance” Marijuana Program?

No doubt spurred by increasing state and national efforts toward legalization of marijuana, Harris County has implemented a policy of quasi-decriminalization of possession of small amounts of marijuana for first-time offenders.  The program, termed “First Chance”, allows a person to avoid being charged entirely under the certain circumstances.

What are the Eligibility Requirements for the “First Chance” Program?

  • The person is detained or arrested for possession of 2 ounces or less marijuana (this is the class B misdemeanor amount, punishable by up to 180 days in jail and up to a $2,000 fine).  The larger law enforcement agencies (Houston Police Department or the Harris County Sheriff’s Office) will provide information to the.  Smaller agencies may still arrest and will be sent to jail and offered the First Chance Intervention Program in Court.
  • The person has sufficient identifying information on-hand (driver’s licenses, ID card, etc.)
  • There are no additional charges out of the instant detention/arrest other than Class C tickets. g., person who is charged with DWI and caught with marijuana in the car will not be eligible.
  • The person has no outstanding warrants (including traffic ticket warrants)
  • The person has no adult criminal convictions for Class B misdemeanor offenses or greater (traffic tickets and municipal/JP convictions do not disqualify, nor do juvenile adjudications)
  • Has never received probation or deferred adjudication for a Class B or greater offense
  • Is not currently on bond, deferred adjudication or probation for a Class B or greater offense
  • Has not participated in this program or another pretrial intervention program

What Do I Have to Do to Get Into the “First Chance” Program?

An offender must:

  • Contact Pretrial Services within 3 business days of his/her arrest and schedule an intake appointment
  • Appear at Pretrial Services for an intake interview and a short assessment
  • Participate for 60 or 90 days*, during which time the offender must:
    • (1) Not break the law
    • (2) Pay a non-refundable $100 program fee (may be reduced or waived if indigent)
    • (3) Complete either 8 hours of community service or an 8-hour cognitive class*

The program length (60 or 90 days) and program requirement (community service or cognitive class) are determined at the intake interview.

Is Pretrial Diversion / Pretrial Intervention the Best Option?

While I certainly agree with more rational drug policy, and these programs will be a good option in many cases, I see a danger in people quickly relinquish potentially meritorious defenses for the possibility of future expunction.

Note that the policy requires agreement to participate in the program within 60 days of the first court setting.  While the District Attorney’s Office will justify this on the basis that timely acceptance of responsibility suggests remorse for breaking the law and on the reduction of prosecutorial and judicial resources.  However, it also may place a defendant in the position of having to make a decision based upon less than complete information about the government’s evidence, as the discovery process often takes more than 60 days.

Being in a pretrial diversion program is burdensome, restrictive, and may result in forfeiture of the ability to perform a timely defensive investigation.  For these reasons, It is in a person’s best interest to consult with an attorney before entering a pretrial diversion program.

© 2021 David A. Nachtigall, Attorney at Law, PLLC