An ounce of hope bubbles up each time the Texas Legislature prepares for another session. Maybe this time lawmakers will finally loosen criminal laws against marijuana possession. On opening day, every team's a contender, right?
Then, along about midyear, cold reality sets in. Like East Texas' Bigfoot, a Democratic blue wave or the Cowboys in the postseason, meaningful marijuana reform is forever a chimera.
So, how do we like the chances during this upcoming session? Well, you never know. We asked around, and it turns out that Texas is poised for action. All reform advocates need is for Lt. Gov. Dan "Buzzkill" Patrick to have a change of heart — presumably after he grows one.
Um, yeah. Looks like that ounce of hope is poised to be another baggie of stems and seeds.
Regardless, state lawmakers have stepped up, filing 11 bills aimed at loosening marijuana laws for consideration when the Legislature meets again in January. In the 2019 session, they filed a record number of bills with the same goal. The result? A minor increase in the number of illnesses covered by the Texas Compassionate Use Act, the state's limited, laughable program that allows some sick people access to a denuded form cannabis oil. The Legislature also legalized growing low-THC hemp for industry.
In other words, nothing close to decriminalization came from the capitol last session, though one unintended consequence of legalizing hemp cultivation is that without a lab test, law enforcement can't distinguish legal hemp from illegal, THC-loaded marijuana. Those tests take time and resources county prosecutors don't have, so prosecutions for possession are down sharply.
But that was in the Before Time, when Texas wasn't facing a $4.6 billion pandemic-shaped hole in its budget, which some lawmakers think a tax on legal weed could help fill. Vicente Sederberg LLP, a national firm specializing in cannabis law and policy, released a report this month that indicated Texas would rake in more than half a billion dollars annually in new tax revenue if it legalized weed.
Bills filed by state Sen. Roland Gutierrez of San Antonio and state Rep. Joe Moody of El Paso would legalize possession of up to 2.5 ounces of cannabis by people 21 and older. Concentrates would be limited to 15 grams, and Texans would be allowed to have up to a dozen cannabis plants in their homes.
How do we like the odds this time around? Marijuana advocates are optimistic, but they usually are. Hope, outsized optimism and boatloads of patience must be necessary to continue the long slog to persuade Texas leaders to stop jailing adults for possession of weed. It must take something more to lobby the Texas Senate, which is controlled by arch-conservative Patrick. Last year, he blocked Senate consideration of a bill that would have reduced criminal penalties for pot possession. It was the first penalties reduction bill to make it through the House of Representatives since 1973.
Matthew Eshbaugh-Soha, chair of the Department of Political Science at the University of North Texas, says divided opinions among Republicans block movement on reform legislation. Libertarian-independents might favor decriminalization or legalization, but social-conservatives in Texas still view weed as immoral.
“There’s just too much of a social-conservative control of the Legislature,” Eshbaugh-Soha said.
He suspects Texas' movement toward looser weed laws will remain incremental until the Legislature sees significant turnover, particularly in the lieutenant governor's office.
“It’s a matter of time before we replace those individuals with more progressive conservatives, perhaps the ones who see the value on the more libertarian side of Texas’ political culture,” Eshbaugh-Soha says. (Note that he's not suggesting Democrats must fill those seats; a different flavor of conservative might do.)
Shaun McAlister, the executive director of DFW chapter of the National Organization for the Reform of Marijuana Laws, has been involved in marijuana advocacy since 2011. Over that time, he's seen only a handful of small wins. Despite the lack of success, he goes into every legislative session expecting significant reform.
“Ultimately, what we want to see is fewer people going to jail for this and more people having access to it, and for there to be better quality control than the black market provides,” McAlister says.
McAlister says having too many bills aimed at loosening weed restrictions may divide support. NORML is focusing on is highlighting the bills that will be most beneficial, and McAlister doesn’t accept the idea that good weed legislation won’t ever make it through conservative lawmakers. While we wait, he said, much can be done at the local level.
If major cities in Texas make weed a lower priority for local law enforcement, there’s not a whole lot the state could do to enforce marijuana laws. In 2017, the Dallas City Council adopted a cite-and-release program that allowed officers at their own discretion to issue misdemeanor tickets to anyone caught with 4 ounces or less of cannabis. Despite this, Dallas cops are still most often booking those they arrest for simple possession instead of writing a ticket.
Meanwhile, Dallas County District Attorney John Creuzot has adopted a policy of not filing minor weed cases against anyone with a clean record and no other charges against them.
This year, Dallas City Council member Adam Bazaldua announced he intends to propose the "decriminalization" of low-level marijuana possession in the city.
Bazaldua’s plan is to change the Dallas Police Department’s general orders to prohibit officers from making these arrests. The proposal is an attempt to address racial disparities in marijuana enforcement and ensure that the police department is using its resources most efficiently.
If Bazaldua's proposal passes, Dallas would be following a trend set by Austin and other Texas cities that have stopped arresting people for low-level possession. In July, the Austin Police Department changed its policy to let people go with misdemeanor amounts of weed, essentially decriminalizing the drug in the city.
Daryoush Austin Zamhariri, creator and chief editor of the Texas Cannabis Collective, a cannabis news site based in Fort Worth, says he’s confident something will happen this legislative session. He thinks it's likely that bills aimed at decriminalization, legalization and expanding Texas' medical marijuana program will all make it to the Senate.
In 2015, Gov. Greg Abbot signed the Texas Compassionate Use Act allowing some qualifying patients to access to weed with 10% or more cannabidiol (CBD) but no more than 0.5% tetrahydrocannabinol (“THC”). It also allows regulated businesses to cultivate, process, and distribute “low-THC cannabis” to certain patients.
It was recently expanded to include more qualifying conditions, but Zamhariri said it’s still one of the most restrictive in the country for both the industry and the patients. Texas has only three licensed dispensaries overseen by the Department of Public Safety. (This, however, doesn't include the numerous health food stores, vape shops, gas stations, etc. selling CBD products on every other block in Dallas these days thanks to CBD's quasi-legal, confusing status.)
The state-authorized product is only in oil form, and to get it, patients must be enrolled in the Texas Compassionate Use registry and treatment has to be prescribed by a doctor who is also in the registry.
Originally, the law was limited to patients with a form of severe, intractable epilepsy. Last year, the program was expanded to admit patients diagnosed with Parkinson's disease, ALS, autism, multiple sclerosis, spasticity or terminal cancer.
“It’s not like other states like Oklahoma or New Mexico where you just get a medical marijuana card and then you go to a dispensary and can get any kind of cannabis you want,” Zamhariri says. “It is a very specialized and lengthy process through which the patient has to jump through several hoops.”
Some legislators are still firmly opposed to marijuana reform, he says, but their numbers are dwindling. “Year by year, we’re just gaining more and more momentum and this idea of prohibition is just becoming ridiculous,” he says.
Marijuana bills have had more success in the House of Representatives in recent years, but the question is always about what is going to happen in the Senate.
“Continued education is our strategy,” he says. Who holds power is less important than ensuring leaders have the facts about marijuana and what it could do for Texas.
“Would somebody else who is more favorable to cannabis be preferred? Absolutely. But in the end, these are people who are elected by citizens of the state of Texas.” Advocates and citizens must continue to educate their representatives, show them the facts and counter the false arguments about weed that still live in the Legislature. Dethroning Patrick may be too big a task.
“Trying to unseat a man as powerful as Dan Patrick takes far more than cannabis advocacy,” Zamhariri says. “I think it’s important for us to realize that the characters can change, but our mission needs to stay the same, which is presenting facts, accurate information and doing so in a professional manner.”
Zamhariri says Sid Miller, Texas commissioner of agriculture, heavily opposed cannabis reform a few years ago. “He was spouting the same prohibition talking points that Dan Patrick often uses,” Zamhariri says. “However, over time, Sid Miller has become one of the greatest advocates in the state of Texas when it comes to cannabis.”
Miller has remained opposed to legalizing recreational marijuana, but he now supports farmers' right to grow hemp in Texas and recently said he is in favor of expanding the state’s medical marijuana program further. He doesn’t have a vote in the Legislature, but his agency oversees the licensing of medical marijuana cultivators in Texas.
“If a guy like Sid Miller, who is a very staunch Republican conservative, can change his perspective, I wholeheartedly believe that a guy like Dan Patrick can as well,” Zamhariri says.
In the meantime, he says he would like to see fewer bills that are broader focused on getting co-sponsors. These tend to have a better chance of getting passed.
If marijuana advocates want to be successful regardless of who is in the Legislature, supportive lawmakers are going to have to be more creative in how they frame the discussion, making it about personal freedom and economics, Eshbaugh-Soha says. “I think what we’re seeing in the Legislature is you just haven’t had the movement toward the entrepreneurial side yet, the liberatarian side,” he says.
According to The Texas Tribune, Gutierrez estimates that legalization could create as many as 30,000 jobs across the state. Moody’s bills would allocate most tax revenue to teacher pensions and salaries. Under Guitererrez’s bill, most of the tax revenue would go to school districts, but would also set funds aside for border security and local law enforcement.
Eshbaugh-Soha says appealing to conservative Republicans with proposals such as allocating revenue for local law enforcement could earn advocates more support in this legislative session, but he predicts it still won't be enough to get past Patrick.
But he said the work done in the meantime is not for nothing.
“You’re setting the stage,” he says. “Lawmaking is incremental. It takes time to get major legislation through, so the efforts that legislators are taking now should pay dividends down the road.”
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