Ed. Note: Greg Prickett is former police officer and supervisor who went to law school, hung out a shingle, and now practices criminal defense and family law in Fort Worth, Texas. While he was a police officer, he was a police firearms instructor, and routinely taught armed tactics to other officers.
In Texas, the state legislature meets every two years for 140 days. It would probably be better if it met every 140 years for two days, but that’s beside the point. At the end of 2018, Congress passed a law to allow the growth and production of hemp.[i] Well, it just so happened that the Lege in Texas was going to start its semi-annual regular session within three weeks of the new federal law, and they wanted to jump on the legalized hemp bandwagon. Of course, one of the problems with new laws and bandwagons is that, if the Lege is not careful, there are ofttimes unintended consequences.
That’s what happened in Texas. Legislators promptly introduced House Bill 1325, which adopted the federal framework for distinguishing hemp, with under 0.3% tetrahydrocannabinal (THC), from the evil devil weed marijuana,[ii] with over 0.3% THC. This would allow Texas farmers to grow hemp for industrial purposes, such as making rope, fabrics, paper, etc. and not be prosecuted for growing marijuana. It seemed like a good idea, was debated and passed by both houses of the Lege. It was then presented to the governor, Greg Abbott, who signed the bill into law.
And this is where the unintended consequences came into play. Under the previous law, all prosecutors had to do was prove that a person possessed marijuana, and the labs in the state did that by showing that the plant material possessed by the defendant contained any amount of THC. Now they have to show that the plant material contained more than 0.3% THC.
Not exactly. The lab tests used in Texas only look for the presence of THC in any amount, but they cannot determine the concentration of THC by percentage. To test for concentration of THC, the labs need expensive new equipment and about 12-18 months to get it in place and train their staff. Of course, prosecutors and law enforcement can send the suspected dope off to a private lab, which can test for the concentration at a cost of $200-750. That works out to about $35 million annually in additional costs. Counties are not willing or, in some cases, able to cover the increased costs.
So, prosecutors all over the state are dismissing marijuana cases right and left. Even old cases.[iii] In Travis County, prosecutors dropped 32 felony and 61 misdemeanor marijuana charges. Tarrant County dropped over 200 charges. Even the prosecutor’s association, the Texas District & County Attorneys Association (TDCAA) has sounded off on the new law and its problems. The TDCAA does point out that it is now a Class C misdemeanor (up to a $1000 fine only) to improperly transport hemp, which would cover it in a vehicle, but it is only an administrative penalty for possessing hemp, and the Texas Department of Agriculture hasn’t yet established those rules.
Some counties are saying that they will continue to prosecute marijuana cases, that they don’t need the THC concentration to prove the case beyond a reasonable doubt. El Paso County District Attorney Jaime Esparza and Montgomery County District Attorney Brett Ligon both claim that they don’t need to test drugs to see if they are actually drugs. Esparza said that circumstantial evidence is enough, that if it were capable of being smoked, that’s good enough.
That’s BS. Oregano is capable of being smoked, and has been sold to people as if it were marijuana. There’s a key issue there—it’s not illegal to smoke oregano.
So now the big wheels in state government, Governor Greg Abbott, Lt. Gov. Dan Patrick, Speaker Dennis Bonnen and Attorney General Ken Paxton, have sent out a letter urging counties to continue to prosecute marijuana cases. They are taking the same basic position Esparza and Ligon have taken. Of course, most criminal defense attorneys are taking the opposite position, that the State has to prove that the material is actually the illegal marijuana instead of the legal hemp.
The late Molly Ivins, a Texas journalist who loved the Lege for its humor potential, had two quotes that cover the current situation perfectly. The first, on legislative sessions in general, was:
“….our very own dreaded Legislature is almost upon us. Jan. 9 and they’ll all be here, leaving many a village without its idiot.”
Well, looking at the current mess in the law, that seems incredibly prophetic… especially since some are calling for a special session (and some are ridiculing the idea) to correct this problem.
The second quote is where we are at right now:
“Good thing we’ve still got politics in Texas – finest form of free entertainment ever invented.”
[i] Hemp is a strain of Cannabis sativa that contains less than 0.3% tetrahydrocannabinol (THC), the psychoactive ingredient present in the other strain of Cannabis sativa, marijuana.
[ii] Disclosure: I have long believed that marijuana should be legalized, or at least decriminalized. We have fought a “War on Drugs” for 45 years now, and we are nowhere close to ending the problem.
[iii] Since the new law was focused on agriculture and not crime, it did not have a saving clause that continued the old law for crimes committed prior to the enactment of the new TCH standard.