Gov. Greg Abbott and the Texas State Legislature are learning that every action comes with a consequence. Their choice to legalize minimal THC cannabis — also called hemp — has become problematic for local law enforcement.
The red state of Texas is known for treating cannabis cases similar to how it treats heroin or methamphetamine cases. Since hemp and marijuana are identical in look and smell, local law enforcement and county prosecutors are throwing out hundreds of weed-related cases and investigations.
The 2018 U.S. Farm Bill removed hemp that contains less than 0.3% of THC from the Schedule I controlled substance list. Hemp is now considered an ordinary agricultural commodity, and it is legal to own CBD products derived from the hemp plant.
Most counties in Texas have decided not to prosecute low-level cannabis cases in the wake of the new law. But there are other counties that have decided to ignore the actions of their neighbors and still pursue convictions in all their cannabis-related cases, even though they don’t have the equipment necessary to make sure the cannabis in question is not within the allowed THC amount. Maybe law enforcement will use the eyeball test or their current mood as a meter to decide who they will take to jail and who they will let drive home with their buds.
The Texas Forensics Science Commission and the federal Drug Enforcement Agency have been spending a lot of time to come up with a method of testing that probably won’t be ready to implement before 2020.
Tarrant County told the Texas Tribune that they could re-file their cannabis cases if they could get test results within the next two years. Sounds like they will just hoard unidentified seized cannabis in their evidence locker like they are distinguished wine collectors, only to return the dusty hemp back to its rightful owner once it eventually goes through their testing process. That sounds a bit obsessive.
In June, the Texas District & County Attorneys Association released a bulletin that mentioned prosecutors across Texas may have to just sit back and wait until there is technology that is effective and cost-friendly before attempting to run their cannabis cases through the court system.
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Out of the 10 most populous counties in Texas, the district attorney in El Paso, Jaime Esparza, is the only prosecutor who publicly said he will continue to prosecute cannabis cases. Esparza told the Texas Tribune that there is usually enough circumstantial evidence to convict someone in a cannabis case, and used the example of police who find a joint in a car, or anything that could be smoked, is enough for them to prosecute. Esparza and the El Paso Police Department must have first-class cannabis connoisseur’s licenses if they can tell the difference between the hemp and marijuana plant. Maybe all of Texas’ counties should forward their cannabis cases to El Paso, since they're so smart.
There is no way to get around probable cause for a search of a vehicle, because marijuana and hemp smell the same. Due to the similarities between the two plants, the Texas Highway Patrol Division has been told to not make arrests, but only hand out citations to drivers caught with cannabis.
Many hemp distributors that ship their products through the mail send legal documentation along with their product. Keeping those papers in the car wouldn’t be a bad idea, and they could help with getting out of sticky situations, similar to driving with a medical card.
One thing we know for sure is that change is inevitable. It doesn’t happen overnight and at times will go unnoticed. But amidst all the confusion and incidental decriminalization of marijuana, Texas has inched its way closer to the legalization of the marijuana cannabis plant.