Prosecution of misdemeanor marijuana cases has been greatly complicated by a new law allowing the production, transport and use of hemp in Texas.
Texas House Bill (HB) 1325, signed by Texas Gov. Greg Abbott June 10, was intended to allow the cultivation, harvest and transport of hemp for use in the production of cannabidiol (CBD)-based health products. Proponents of CBD products claim it is effective in treating pain, anxiety and movement disorders. CBD is found naturally in marijuana plants.
Under the new law, CBD’s use in health products is allowed only when supplied as an oil in its pure form — specifically, lacking tetrahydrocannabinol (THC), the ingredient that gives marijuana its recreational “high.” Under HB 1325, any hemp derivative containing more than 0.3% of THC is considered marijuana and continues to be illegal in any quantity.
For prosecutors, the problem comes down to measuring the amount of THC contained in hemp. Current laboratory tests cannot determine whether a given sample exceeds the legally allowed THC limit.
“The laws on marijuana have not changed, but the definition of marijuana has, and that makes a difference,” noted Tom Needham, McLennan County assistant district attorney in a recent interview with KWTX-TV in Waco.
The Texas Department of Public Safety acknowledged the testing limitation, noting that few labs have “the equipment, procedures or resources” to determine the amount of THC in a sample. An advisory from the Texas District and County Attorneys Association offered a similar assessment.
Defense attorneys have been quick to focus on this limitation, noting that prosecutors cannot prove that evidence in marijuana possession cases is actually pot and not merely hemp.
“It would be absolutely irresponsible for any attorney to agree to a plea bargain on a misdemeanor marijuana case,” noted one Central Texas defense attorney, a former prosecutor. “Make them (the state) prove it. Right now, they can’t.”
In fact, one attorney pointed out “possession of small amounts of marijuana in Texas today is de facto legal but de-jure illegal,” meaning it’s illegal but the state can’t prove it.
So What’s a Prosecutor to Do?
As a practical matter, charges for possession of recreational amounts of marijuana are not currently being filed in any of the major metropolitan areas including Dallas, Houston, San Antonio, Austin, El Paso or Fort Worth. In most of these counties, prosecutors have not announced a policy regarding prosecution for recreational amounts of marijuana but have informed policing agencies not to make the arrests or confiscate the drugs.
Prosecutors in smaller jurisdictions are in the process of trying to figure out how to proceed with these cases.
“Well, We Didn’t Think About That”
State Rep. J.D. Sheffield, M.D., said when HB 1325 came up for a vote there was no discussion about the hemp versus marijuana issue, and most House members were not aware there was a problem. In fact, HB 1325 was filed and heard in the Agriculture & Livestock Committee of the House with very little discussion or testimony.
“It’s one of those things that we did, and now we’re looking back and saying, ‘Well, we didn’t think about that,’” Sheffield said.
Currently, prosecutors say, about 30 laboratories in Texas perform tests to identify marijuana. Upgrading those laboratories to measure THC content accurately would cost the state an estimated $15 million.
Until the appellate courts sort out how these prosecutions are going to go forward, possession cases will be treated disparately, depending on where arrests occur. For instance, Coryell County Attorney Brandon Belt said, “We’re going to take those cases to court, and if the defendant says we haven’t proved the evidence we have is actually marijuana, then we’ll send it off to a lab that can define THC and get it tested if we think the case is worth it.”
On the other hand, most defense attorneys who have clients arrested after Sept. 1will no longer feel comfortable pleading those cases, and a dramatic increase in request for jury trials is expected.
State Officials Weigh In
On July 18, 2019, the governor, lieutenant governor, attorney general and speaker of the House sent a letter to the Texas District and County Attorneys Association emphasizing that HB 1325 was not intended to, and did not, affect the marijuana possession prohibitions currently in the Penal Code. The entire letter is published at https://gov.texas.gov/uploads/files/press/Letter_to_DAs.pdf.
Portions of the letter state:
…marijuana has not been decriminalized in Texas, and these actions demonstrate a misunderstanding of how H.B. 1325 works. First, a person claiming to transport hemp must have a certificate. Failure to have the required certificate while transporting hemp is a separate crime. Second, lab tests are not required in every case and are more affordable than initial reporting indicated. Failing to enforce marijuana laws cannot be blamed on legislation that did not decriminalize marijuana in Texas…
Some have expressed concern that H.B. 1325 carved out hemp from the definition of a controlled substance, and defined hemp as having .3% or less THC concentration… Adopting this federal definition of hemp did not limit the prosecutorial options for prosecuting marijuana cases. 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. Even before passage of H.B. 1325, companies and labs were already developing THC concentration tests. As more companies enter the testing marketplace, the costs of the tests will certainly decline, and you may weigh which prosecution method is appropriate. In short, lab tests are not always needed, and they are not as costly as some initial reporting indicated.
Bills have been filed in the last five Texas legislative sessions seeking to decriminalize recreational amounts of marijuana. Depending on how HB 1325 impacts prosecution for possession, the handwriting may be on the wall and we might expect decriminalization to pass next session.