This article first appeared on EducatingTexans.org
This past month has seen some counties dropping minor possession charges for marijuana. Others not so much. Denton, Dallas, Travis, Williamson and Bexar counties among others, have decided to either drop pending marijuana possession charges or switch to a cite and release program. El Paso, Smith (read below) and Hays County have been explicit in not changing how things will work.
This all came about when Governor Greg Abbott signed HB 1325 into law and hemp became legal, separating hemp and marijuana from one another legally under the umbrella of cannabis. The law created a bit of reasonable doubt as to whether a product is something legal or not under Texas law, and something that only proper lab equipment (which the majority of the state does not have) would be able to determine.
So many counties and cities have moved away from prosecuting the low level possession charges that Governor Abbott, Speaker of the House Dennis Bonnen, Attorney General Ken Paxton and Lt. governor Dan Patrick recently spoke out against what is taking place across Texas with these cases. They sent out a lovely letter and posted it for everyone to read.
” Importantly, the law also requires a Department-approved shipping certificate or cargo manifest that confirms the product in transport is legally compliant hemp. Id. §§ 122.055, 122.356. Failure to have the required certificate is a misdemeanor and also subjects the person to a civil penalty of up to $500 per violation, collectible by the attorney general or any district or county attorney.3 Id. §§ 122.359, 122.360. Currently, there is no state approved hemp plan and thus no approved certificate for transportation. “
Governor Abbott starts assuming here that because Texas does not have a state approved hemp plan and no approval certificate for transportation, that anybody transporting hemp is in violation of the law. That is just not true.
“because you can prosecute a misdemeanor for failure to have a proper hemp certificate. If a person is transporting hemp but has no certificate, you may now prosecute that person for the offense of failing to have a hemp certificate. TEX. AGRIC. CODE §§ 122.356, 122.360. This certificate is required of any person transporting hemp plant material in Texas. Id. 4 If they have a certificate, which the Department has yet to promulgate, then it’s a fake—which is a felony.”
What if the document comes from the state of Colorado and covers hemp being transported to Florida or vice versa? From any federally legal state to another federally legal state under the 2014 farm bill? The USDA says that Texas does not have the right to charge them in an attempt to prohibit that interstate commerce as part of the 2014 and 2018 Farm Bill amendments. Basically Abbott has called for officer to act ignorant of federal law now concerning hemp.
” Criminal cases may be prosecuted with lab tests or with the tried and true use of circumstantial evidence, a point some of you have already made clear in this context. “
The circumstantial evidence that Abbott is talking about, are things of the nature of police finding a joint or anything capable of being smoked (which could still be hemp inside). And remember, smoke-able products are legal in Texas. First off, the reference he makes is to the El Paso district attorney saying they were not lab testing before. Well, the law changed, hence the changes we have been seeing in prosecution. As well, reasonable doubt is tied to circumstantial evidence, because it is evidence that relies on an inference, and reasonable doubt was put in place so that the circumstantial evidence against someone in a criminal or civil case must be enough to acquit someone fairly. Reasonable doubt is described as the highest standard of proof used in court and means that there must be clear and convincing evidence of what the person has done. Therefore, the circumstantial evidence against someone may not be enough but it can contribute to other decisions made concerning the case.
This is part of due process of which the fifth amendment and the 14th amendment both speak to the “due process” that is intended to be carried out in legal matters of any kind. It is a Constitutional right to be allowed this due process, and it is understood that your right to be presumed innocent is a “fundamental element” of this process. In that sense, it is a Constitutional right, even if it is not directly addressed by the constitution.
With the statement released, all 4 of these gentlemen are asking for due process to be ignored. Due process would have to be ignored given that the circumstantial evidence they speak of provides no actual proof of a crime being broken. Using the logic they are using and want to see used, police could claim your cigarettes smelled or looked like an illegal substance, arrest you, put you in prison until trial (unless you make bail), and then use just this circumstantial evidence to convict you in court without lab testing. No need to test it to make sure it was hemp, tobacco, clove or any other type of legal herb for smoking versus marijuana. Therefore no presumption of innocence, and therefore no due process.
To make this matter worse, rumors are circulating around Smith County and the city of Tyler, that the county wants to place either a ban on Hemp/CBD products or place a sort of licensing fee to sell hemp products. Smith County District Attorney Jacob Putman has already publicly stated that they will not be dropping any low level possession charges. Speaking with a resident in the county who wished to remain anonymous, ET was informed that the county was looking in to making this change despite the state law banning this practice. That it was possible that this change was being done because more than likely no attorney would want to take up a case to fight it out fear that they may upset good standing with an elected judge in the county.
It is possible that this may be taking place when the D.A. tells police officers that “smelling burnt marijuana is still probable cause to search because while the changes to the law do allow some consumable hemp products, they do not allow substances that can be smoked”, which is also untrue. Smoke-able products are fine, creating them is not legal in Texas.
If you are interested in getting the county to address the truth behind this, one can contact the City Council of Tyler, Ask the Mayor of Tyler, or call the office of District Attorney Jason Putman. You can tell them you heard about this online. Power in numbers so let us know how it goes!
