This spring, the Texas Legislature passed a bill legalizing hemp and hemp-based products as long as those products contained less than .3% THC. THC is the psychoactive ingredient in marijuana. At the time, the decision seemed simple enough. It put Texas farmers on a level playing field with farmers in states that have already legalized hemp, and it pulled the state's numerous CBD peddlers out of the gray market.
Over the last couple of weeks, it's turned out things weren't so simple. As the summer's worn on, prosecutors throughout the state, including those in Tarrant and Harris counties, have dismissed hundreds of possession marijuana complaints because the crime labs they typically use don't have a test to determine whether the substance seized by officers making the arrests is legal hemp or illegal marijuana.
While prosecutors dismissing marijuana possession cases might seem like a good thing, Texas Gov. Greg Abbott, Lt. Gov. Dan Patrick, House Speaker Dennis Bonnen and Attorney General Ken Paxton, Republicans all, made sure Thursday that everyone in the state knows that they are deeply concerned and still very much against the demon weed.
"Some of you have recently dismissed marijuana possession cases or announced you will not prosecute misdemeanor marijuana possession cases without a lab test. Such actions relate to House Bill 1325 taking effect, which aligns Texas law with federal law by distinguishing hemp from marijuana in the same way federal law does," the group wrote in a letter to prosecutors.
"(T)hese 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."
So much for happy accidents.
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Harris County District Attorney Kim Ogg said earlier this year that her office would not prosecute low-level marijuana possession cases with a lab report because of the new law. Because those tests aren't readily available, that's effectively meant a moratorium on weed possession prosecution in Houston and the rest of the county. Thursday, she said her policy won't change because of the letter.
"The Legislature makes laws, but courts interpret them and that will be the case in this instance. Prosecutors have an ethical duty to be able to prove beyond a reasonable doubt, and laboratory confirmation in drug cases has long been required. When a person’s liberty is at stake, juries demand nothing less," Ogg said in a statement.
In Dallas County, District Attorney John Creuzot stopped prosecuting first-time marijuana possession cases in April, well before the legislature passed the hemp legalization bill. Thursday night, he echoed Ogg.
"The concentration of THC is a statutory element of an offense that we must prove to establish a person's guilt," Creuzot said in a statement. "Our office will not charge a person with a marijuana offense without a laboratory report stating that the substance has an illegal concentration of THC."