The Texas cannabis industry has an ongoing saga about smokable hemp. And the state just clarified why it has it out for smokable hemp, officer arrests.
Today, the district court in Travis County held another hearing on the smokable hemp ban enacted by DSHS recently. Informed Texas posted an article noting the details of the hearing. Charles Eldred was present to represent the state.
Out of 4 points, Eldred only objected to the probable right to recovery. He maintained that the rules: “1. do not add to the statutes, 2. do not counter the statute, 3. do not create additional restrictions.”
Eldred equated the ban on the manufacture of smokable hemp products in HB 1325 to a ban on the sale. Asserting it was the intent of that bill. Eldred is implying that HB 1325 does this and DSHS is only making it explicitly known.
Judge Livingston asked, “Why does the state care? What is the interest?”
Eldred responded, “If they smoke a joint of hemp on the street then cops can’t arrest people smoking marijuana on the streets.”
Basically, an officer can’t immediately make the differentiation between legal hemp and illegal marijuana. There is no instant method for them to know. Making a current arrest a tricky issue to the state.
Currently, the kits police have a test for, detects any amount of THC. Individuals smoking hemp may have their legal product tested and get a positive test back on the kit. This is simply because legal hemp can have limited THC and the kit is pass/fail. Officers would then arrest or ticket the individual for possession of marijuana, despite no true evidence of such yet. Basically, sort it out in court.
The state fears what may come with that. That the number of counties that aren’t pursuing these cases to prove if a person actually broke the law, would prevent an officer from arresting individuals actually smoking marijuana. Another view concerns the state. Over time, given a possibly higher failure rate to convict will persuade them to not hear smoking cases and lead to legalization.
Clarity and explicit precision in the law is paramount now.
If the state really wanted to make this ban work from the beginning, our legislature could have followed a simple piece of information that’s been in the drafting manuals time and time again.
“A well-drafted statute expresses the legislature’s intent as precisely and readably as the English language permits. Good draftsmanship is simply good writing. A well-drafted statute is distinguished by clarity, economical use of language, logical organization, and adherence to generally recognized standards of grammar and usage. In the words of Justice Holmes, a good piece of drafting excludes “every misinterpretation capable of occurring to intelligence fired with a desire to pervert.”
Texas Legislative Council Drafting Manual CHAPTER 7 STYLE AND USAGE
Basically, don’t have your legal language imply something that you want explicitly known. It is a gross oversight to imply that the manufacture ban implies a sales ban, especially when two sets of rules and licenses are set forth for manufacture and retail. One can possibly not manufacture grain alcohol, but be permitted to sell it and vice versa given the licenses. Those are very explicit items. One would easily assume that if they have the right to create grain alcohol, they could also sell it unless explicitly told otherwise.
Judge Livingston plans to reach a verdict on the case by September 17th when the TRO expires.