Did Texas’ new hemp law accidentally decriminalize marijuana?

Monday June 10th, 2019 was the day that the average citizen of Texas thought it would become clearer on how we handle hemp and hemp based products in the state of Texas.

Of course there was still more regulation to put in place on how crops have to be grown, when permits could be obtained, the typical bureaucrat paperwork and red tape the government has to do to finish up a new bill in any state. On the state side for the executive and judicial branch it got way more complicated, some DA’s are claiming. Here is why that is the case.

According to James Miller of the Houston Forensic Science Center, which houses Houston PD’s crime lab, he claims the immediate implementation of the law “took them by surprise.” Miller stated that the crime labs found across Texas currently lack the necessary equipment to test for the THC content of cannabis samples in order to tell the difference between “hemp” and “marijuana.” This was despite the fact that the Farm Bill passed in late 2018 laid the groundwork making interstate transport of hemp legal with proper documentation, and would therefore require labs to start becoming up to date immediately regardless of Texas state law. How else would police determine what is hemp and what is marijuana if they suspect fraud in transport, since their roadside tests cannot give precise measurements on THC?

“The distinction between marijuana and hemp requires proof of the THC concentration of a specific product or contraband, and for now, that evidence can come only from a laboratory capable of determining that type of potency — a category which apparently excludes most, if not all, of the crime labs in Texas right now,” according to Shannon Edmonds, director of governmental relations for the Texas District and County Attorneys Association.

The lab for the Texas Department of Public Safety and other state and private labs will have to purchase new equipment and change certain testing procedures before they can supply that new information to courts so criminal cases involving marijuana can go to trial, Edmonds said. This week, the Tarrant County District Attorney’s office dismissed about 235 misdemeanor marijuana possession cases.

A big issue also being brought into the light about this is that the new bill lacked a provision that would have ensured the law was not implemented retroactively. That creates a problem for any marijuana prosecution scheduled to go to trial this year, as defendants will be able to argue for a lack of evidence that any material seized had a THC-content in excess of .3%. This in turn causes issues for DA’s that have cases that are a year or older in misdemeanor violations and over two years for felony violations if they do not want to send samples for testing to capable laboratories in state, such as Ionization Labs, due to statute of limitations on case lengths. In Texas possession up to two ounces is a misdemeanor with a limitation of two years, while felony drug charges are three years. Right now the advisory says it will be four to 12 months before labs can purchase equipment, adopt protocols and provide the evidence needed to prosecute a marijuana case at trial.

“Until then, there will be no easy way to determine whether the weed your officers seized is illegal marijuana,” Edmonds said.

In an interim update circulated to district attorneys earlier this week, the Texas District and County Attorneys Association said that prosecutors may have to “get creative” in the disposition of pending marijuana cases, if they choose to accept them at all. The Association pointed DAs toward prosecutions for undocumented transportation of hemp, but that is a Class C misdemeanor carrying a maximum $1000 fine.

David Sloane, a Fort Worth attorney and spokesman for DFW NORML said that he thinks, “this will really throw a monkey wrench in a lot of the arrests they are making,”

“If the state doesn’t have the means of proving up its case, it will put all the marijuana arrests in jeopardy and it will create some nightmares for the prosecution,” Sloane said.

Texas Scorecard has already posted an article about this and is pointing concerned people to Governor Greg Abbott to call a special session to fix these issues. The reality of this though is that these offices saw it coming, and they thought that the legislature would meet their demands over those of the people wanting the law changed to help this state implement a new cash crop. As the saying goes from the Texas Police Chief’s Association, “they don’t make the laws, they just enforce them.”