District attorneys in Gregg, Upshur and Rusk counties said a new law setting a high technical bar to prosecute misdemeanor marijuana cases will not stop them from trying defendants.
The tough-on-pot stance contrasts with that of some urban prosecutors, who are dropping hundreds of marijuana cases filed since June 10, when House Bill 1325 took effect with Gov. Greg Abbott’s signature.
The law, an agriculture bill legalizing the growing of industrial hemp in Texas, comes after the 2018 federal Farm Bill made hemp legal in the United States. But the sudden law leaves crime labs, including those with limited funds in East Texas, in a quandary, because testing to tell the difference between hemp and pot is either not available or not affordable.
Hemp vs. pot
Hemp and marijuana are close cousins, two distinct strains of the same plant — known botanically as Cannabis sativa — and both contain the psychoactive compound tetrahydrocannabinol, better known as THC. THC is the intoxicating ingredient that makes pot smokers high.
However, hemp has lower concentrations of THC and more cannabidiol, or CBD, which is a growing market in East Texas and across the state. Hemp also is used in other products, including textiles, fuels, rope and chemical absorbents.
The market for hemp — from textiles to seeds to CBD oil — has grown from a few million dollars in 2015 to $820 million in 2018, and about a third of that is from hemp-derived CBD, according to New Frontier Data, a cannabis market research firm.
House Bill 1325 says if a Cannabis sativa plant or any product made from it contains no more than 0.3 percent THC, it is hemp. If it the plant or a product contains more than 0.3 percent THC, it’s marijuana.
A major problem the new law imposes for law enforcement officials is that the testing equipment necessary to detect three-tenths of 1 percent THC so far isn’t available.
Indeed, most crime labs across Texas don’t have the equipment, the testing methods, the capacity or the accreditation to determine the percentage of THC in a sample, said Peter Stout, president of the Houston Forensic Science Center, which provides lab testing for Houston police and other local agencies.
“I think (the Texas Legislature was) trying to construct a law that didn’t legalize marijuana while allowing for hemp to be produced legally. But it created some unintended consequences,” Stout said.
Before the legislation was passed, the Texas Department of Public Safety indicated it could cost the agency up to $20 million to hire and train new staff and buy equipment.
Testing for plant-based substances such as pot itself could require merely recalibrating existing instruments, Stout told the Houston Chronicle. But testing THC content in nonplant seizures — such as vape pens, gummy bears or CBD oil — will require mass spectrometers that cost from $300,000 to $400,000, he said. And he said he knows of one only lab — NMS Labs in Pennsylvania — that’s now accredited in Texas for that kind of testing.
Marijuana possession in Texas is a misdemeanor at 4 ounces or less.
Possession of less than 2 ounces is a Class B misdemeanor, punishable by up to 180 days in jail and a $2,000 fine. Possession of 2 ounces to 4 ounces is a Class A misdemeanor, with a maximum punishment of one year in jail and a $4,000 fine.
Because of the new law, the Tarrant County Criminal District Attorney’s Office in Fort Worth has dismissed 234 misdemeanor marijuana cases and said that all future cases must have a lab result showing the THC concentration. The Harris County District Attorney’s Office in Houston has dismissed 26 misdemeanor marijuana cases.
That office, along with the Bexar County District Attorney’s Office in San Antonio, this week signed a letter saying they will stop accepting misdemeanor marijuana pot cases that don’t have a lab test result showing the THC concentration.
Travis County District Attorney Margaret Moore in Austin announced Wednesday afternoon that her office is dismissing 32 felony cases involving possession or delivery of marijuana or THC because of the new law. Moore said it will be eight to 12 months before crime labs with Austin police and the DPS can test for THC concentrations.
Gregg County District Attorney Tom Watson said Wednesday he’s not ready to go that far just yet.
“I don’t want to just start dismissing cases, because I truly believe the intent of the law was not to decriminalize marijuana,” Watson said. “But they really put us in an awkward position. ... It’s been a surprise on us, about why it was rushed, signed and put into effect immediately. I just don’t understand that.”
Unless bills have some sort of urgency surrounding them, they typically take effect on Sept. 1 after a legislative session.
Watson said he expects an adjustment period as the expensive testing riddle is solved.
“I’m anticipating a backlog till we get the testing,” he said. “Then it just becomes a question of budgeting — can we afford to use those private labs? ... I haven’t talked to our (Department of Public Safety) lab over in Tyler yet, but I intend to do that.”
Rusk County District Attorney Micheal Jimerson and Upshur County District Attorney Billy Byrd also said they intend to keep prosecuting.
Jimerson in Henderson reported Wednesday “no change in policy” regarding misdemeanor pot prosecution by his office. He also he has been in communication with the offices of state Sen. Bryan Hughes, R-Mineola, and state Rep. Travis Clardy, R-Nacogdoches.
“Possession of marijuana is still illegal,” Jimerson wrote in an email to the Longview News-Journal. “Since the Legislature created this problem, it is incumbent upon them to provide a solution.”
Cops told to carry on
Watson and Byrd said they have sent messages to local law enforcement.
“Let’s be business as usual in Upshur County,” Byrd wrote to his local agencies. “The Department of Agriculture has not had time to develop administrative rules on licensing and transportation of hemp. On our side of things, the labs will have to purchase and create new testing procedures. In the meantime, we can assume that all marijuana is still illegal.”
Watson said he is asking local officers to “use their discretion” when weighing whether to issue new marijuana possession charges — at least until private labs are identified or the Texas Department of Public Safety facility “gets up to speed to do the testing.”
“But as far as changing anything right now,” he said, “we’re still rolling along.”