• Pace LaVia

Did Texas inadvertently legalize marijuana along with hemp? It’s complicated.

This article was originally written for and appeared in TXdispensaries.com.

This is an interesting twist to the avalanche of states passing legislation legalizing and decriminalizing marijuana nationwide. It seems Texas lawmakers have inadvertently made it damn near impossible to file charges against those found to be in possession of marijuana — which, in some counties, at least, is as good as legalizing it.

Texas is renowned for its harsh drug laws. In fact, more than sixty thousand Texans were arrested on charges related to marijuana possession in 2017 — a whopping eight percent of total arrests. Now, thanks to new hemp legislation, that number is dropping fast.

So it’s a hemp bill. What’s the harm?

In 2018 U.S. lawmakers passed a federal Farm Bill which removed hemp from the Drug Enforcement Agency’s list of Schedule I controlled substances. Hemp, as you probably know by now, is the same plant as marijuana, but hemp is bred to be essentially devoid of THC, the intoxicating compound found in pot.

In an effort to take advantage of the situation and begin building a hemp market in the state (after four score decades of prohibition), Texas lawmakers passed bill H.B. 1325, legalizing the cultivation, processing, sale, and possession of hemp. However, they never dreamed that they would be causing such an uproar.

Here’s the rub. What lawmakers didn’t take into account was the state’s crime labs do not (yet) have the necessary equipment to tell the difference between hemp and pot. They essentially look and smell the same. The only way to tell if the plant in question is illegal is to determine its THC concentration.

The key word here is “concentration.” Although state crime labs are equipped to test for the presence of THC, they are not equipped to determine concentration levels.

Before the hemp law went into effect, the presence of any amount of THC was enough to result in criminal charges. In fact, this caused a nightmare for a number of Texans who were found to be holding CBD oil vape pens. Although the concentrations of THC are extremely low, they are detectable. And many a law-abiding, CBD-loving citizen has gone through the nightmare of being charged with possession of an illicit drug.

The “cite and release” memorandum

Imagine this scenario. You're a Texas state trooper. You pull over a carload of teenagers for whatever reason and the car smells like weed. But you have no way of proving that what you smell isn’t hemp rather than pot. What do you do? Apparently, in many cases, the arrest is no longer an option.

Shortly after the bill was signed — and everyone realized the blunder — the Texas Department of Public Safety informed police departments that, “effective immediately, personnel will cite and release for any misdemeanor amount of marijuana.” In layman’s terms, that means officers are being told to give the scofflaws a ticket for marijuana possession and let them go.

Furthermore, the Texas District and County Attorneys Association said that it might be necessary to wait until the state acquires the proper testing equipment before pursuing legal action against marijuana defendants.

As a result of the predicament, hundreds of misdemeanor marijuana cases have been dismissed so far and several district attorneys' offices have completely stopped prosecuting violators — at least for the time being.

According to Click2 Houston:

  • Fort Bend officials have dismissed 607 misdemeanor marijuana possession cases.

  • Waller County has dismissed 222 misdemeanor cases.

  • Galveston and Brazoria counties told law enforcement in their areas to hold onto these cases until testing is ready.

  • The head of the Montgomery County trial bureau said evidence will only be tested if the case goes to trial or if testing is requested by the defense.

For an example of the chaos that has ensued, we have this gem from an article on Click2 Houston’s website titled, “More fallout from state's new hemp law”:

"It was little, just nothing but a gram, just a gram," Donte Chazz Alec Williams said. In April 2018, Williams was stopped for not having his headlights turned on while driving. The officer then found a small amount of marijuana in the car… When his next court date came up, Williams said he was certain he was headed to jail. However, Williams was stunned to hear from his attorney the case was dismissed. "Blew my mind, though, honestly," Williams said. "That is really the quickest, least painful court date I ever been to." Court documents filed in Williams' case read the charge was dismissed because "required lab testing unavailable at this time."

As you can imagine, Mr. Williams was grateful to state lawmakers for making it impossible for the state to prosecute the case. There is one caveat to this story, however. Court records show that the DA “could refile the case at a later date.” But that’s extremely unlikely.

Texas’ lawmakers are reticent to take the blame. In July, a letter signed by Governor Greg Abbott, Lieutenant Governor Dan Patrick, Texas House Speaker Dennis Bonnen, and Attorney General Ken Paxton was sent to prosecutors urging them to continue to enforce the state’s marijuana laws. “Failing to enforce marijuana laws cannot be blamed on legislation that did not decriminalize marijuana in Texas,” the letter said.

According to the Houston Forensic Science Center, it’s going to be at least six months before the testing equipment required to peg pot is in place. That means some time in 2020.

In the meantime, there are still some buzz-killing counties in the state that have decided to continue to pursue convictions in all their cannabis-related cases, even without the necessary testing equipment.

In El Paso County, one of the 10 most populous counties in Texas, the district attorney has publicly said he will continue to prosecute cannabis cases. And in an interview with the Texas Tribune Tarrant County officials said that they could re-file their cannabis cases if they could get test results within the next two years.

A writer for the Dallas Observer noted that it sounds like “they will just hoard unidentified seized cannabis in their evidence locker like they are distinguished wine collectors, only to return the dusty hemp back to its rightful owner once it eventually goes through their testing process. That sounds a bit obsessive.”

Will Texas legalize marijuana in 2020?

Even before this snafu arose, the state had an uneven patchwork of marijuana enforcement policies. “How harshly you’re punished for pot possession depends on where you’re caught, even more so now,” writes the Texas Observer.

Advocates for legalizing the recreational use of marijuana hope that DAs in the state decide to go ahead of the legislature and stop prosecuting for possession indefinitely.

Legal marijuana in Texas isn’t just a pipe dream. The University of Texas and the Texas Tribune published a poll in the summer of 2018 that showed a majority of Texas voters support full legalization. And efforts are underway to develop such legislation.

Heather Fazio, director of Texans for Responsible Marijuana Policy told the Observer, “This all just reaffirms what a growing number of Texans already realize. Prosecuting people for low-level marijuana isn’t a good use of resources. Nor is it worth the devastating human consequences that come with a drug conviction.”

In an article for the Cato Institute, the authors point out that “if the directives issued by the TDCAA and TDPS become the new standard, Texas could see a huge decline in arrests and prosecutions. This will generate budgetary savings and facilitate re-allocation of law enforcement and judicial resources to more pressing issues.” They go on to state, that it would be “a shame” if the bill is repealed. “Even though this de facto decriminalization was an accident,” they say, “it was a good one.”

Additional reading on this topic:

Cato Institute - Hemp Bill Leaves Texas Prosecutors in the Smoke

Click2 Houston - More fallout from state's new hemp law

Dallas Observer - Marijuana Is Now Legal...ish in Texas

Texas Observer - Texas (Kinda, Sorta) Accidentally Decriminalized Weed. Now What?

Department of Public Safety Interoffice Memorandum HB1325 Guidance

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