Gov. Greg Abbott, Lt. Gov. Dan Patrick, Speaker Dennis Bonnen and Attorney General Ken Paxton on Thursday sent a letter to district and county attorneys throughout the state telling them to stop dismissing marijuana possession cases and prosecute them.
The letter comes after prosecutors in some Texas counties, including Travis, dropped numerous marijuana cases following the passage of House Bill 1325, which legalized hemp.
Hemp, like marijuana, comes from the cannabis plant. But unlike pot, hemp has a tetrahydrocannabinol, or THC, concentration of 0.3% or less. In higher concentrations, THC creates intoxicating effects.
“Marijuana has not been decriminalized in Texas, and these actions demonstrate a misunderstanding of how H.B. 1325 works,” the letter states. “The power to change the law is legislative and rests with the Texas Legislature under the Texas Constitution. Since H.B. 1325 did not repeal the marijuana laws of Texas, as Judicial Branch Members, you should continue to enforce those laws by ‘faithfully executing the duties of the office of the (District or County Attorney), of the State of Texas, and … to the best of (your) ability preserve, protect, and defend the Constitution and laws of the United States and of this State.’”
Travis County District Attorney Margaret Moore and County Attorney David Escamilla announced on July 3 that they would drop 93 marijuana possession cases.
In a news release announcing the decision, Moore said her office does not have the ability to obtain THC concentration results, nor do labs run by Austin police or the Texas Department of Public Safety. Furthermore, she said it could be up to 12 months until labs are capable of testing THC concentrations, adding that she knew of only one lab that could currently run the required test.
Williamson County Attorney Dee Hobbs followed suit, saying he would be unable to prosecute cases that his office had received after the new hemp law went into effect on June 10.
“I feel I don’t have the ability to properly (prosecute) without testing the substance,” he said. “Because right now that makes all the difference in the world.”
Prosecutors in Bexar, Harris, Fort Bend and Nueces counties have made similar changes, among others.
The Lubbock County District Attorney’s office told A-J media earlier this month that they are discussing the issue but had no plans at the time to dismiss misdemeanor pot cases.
Complicating the enforcement and prosecution of marijuana laws further, the odor of hemp and marijuana is the same — even police dogs are unable to tell the difference. Austin police Asst. Chief Jennifer Stephenson and Travis County sheriff’s office Maj. Craig Smith said their officers and deputies have been told by department leaders to stop relying solely upon sniff tests as probable cause in drug cases. Instead, they have been told to rely upon “other indicators” to build cases.
Abbott and other state leaders said lab tests are not the only way to prove marijuana possession cases. They can also be proven through other circumstantial evidence, their letter said.
And as companies and labs develop THC concentration tests, their costs will decline, they said.
“Even if a lab test were needed, they are not as costly as some initial reporting indicated,” their letter said.
Moore told the American-Statesman on Thursday that no one interprets the new law to have in any way legalized marijuana possession. However, she said, it did add an additional element to the offense that wasn’t there before, and one that requires lab testing that is not available through current capabilities.
Moore said additional resources with lower price tags will likely spring up in the future, but in the immediate fallout of the law, there’s little wiggle room. She said it was never her intention to stop prosecuting marijuana cases on a long-term basis.
“I have told law enforcement agencies that work with us, because we are talking about felonies, they should continue to enforce the law,” she said.
Moore’s office consults with police agencies on what kinds of facts can establish probable cause, and on what cases to prioritize as everyone, from police to prosecutors, struggles to find resources to do required testing.
Moore said it would have been helpful if legislators included lab resources in the bill when they passed it.
“I’ve asked law enforcement to staff with us on felony cases if we need additional resources, but right now I haven’t identified additional resources,” she said.
State officials said the bill directs the Texas Department of Agriculture to make rules that would require hemp producers to test their own products to ensure they fall below the 0.3% threshold and carry a certificate. If they don’t, officials said, hemp producers could face a misdemeanor charge with a $500 fine.
Department of Agriculture spokesman Mark Loeffler said those rules won’t be written until federal officials at the U.S. Department of Agriculture make guidelines that outline how states can regulate hemp.
The rules are likely to come into effect early next year, he said. Until that happens, hemp remains illegal to grow in Texas, though it is not illegal to transport it, Loeffler said.