AUSTIN, Texas (KWTX) State leaders have sent letters to district and county attorneys throughout Texas in which they say “marijuana has not been decriminalized” despite concerns a new law, House Bill 1325, which legalizes hemp, could have an unintended effect on misdemeanor pot cases statewide.
“Marijuana has not been decriminalized in Texas, and these actions demonstrate a misunderstanding of how H.B. 1325 works,” the letter signed by Gov. Greg Abbott, Lt. Gov. Dan Patrick, House Speaker Dennis Bonnen, and Attorney General Ken Paxton says.
“Since H.B. 1325 did not repeal the marijuana laws of Texas, as Judicial Branch Members, you should continue to enforce those laws.”
House Bill 1325, signed by the governor on June 10, which took effect immediately, was intended to clear the way for Texans to grow, harvest and transport hemp to market for use in the production of natural CBD-based health products.
CBD, which is short of Cannabidiol, is a type of cannabinoid found naturally in marijuana and hemp plants, but it’s not connected with the high associated with marijuana.
CBD may be supplied as an oil in which CBD is the only active ingredient and may also be inhaled as smoke or vapor or through an aerosol spray or taken in capsule form to relieve such problems as anxiety, pain and movement disorders.
“The laws on marijuana have not changed, but the definition of marijuana has and that makes a difference,” Tom Needham, McLennan County assistant district attorney, said in an earlier interview.
The law redefined marijuana to include only parts of the cannabis plant that contain concentrations of tetrahydrocannabinol or THC, the ingredient that causes a high, of more than 0.3 percent.
Any hemp derivative that tests more than 0.3 percent for THC is considered marijuana and anything less is hemp.
But while hemp is not necessarily marijuana, marijuana is always hemp and the only distinction is in the concentration of THC, which few crime labs in the state are capable of determining, according to an advisory from the Texas District and County Attorneys Association.
A Texas Department of Public Safety spokesperson told the Texas Tribune earlier this month that it doesn’t have the “equipment, procedures or resources to determine the amount of THC in a substance.”
In the letter, the state leaders say the new law directs the Texas Department of Agriculture to adopt rules that require state licensing of hemp producers and testing to ensure their products have a THC concentration of 0.3 percent or less.
The law also requires shipping certificates to confirm the product is compliant.
“In short, H.B. 1325 gave prosecutors more tools to prosecute these crimes, not less, because they can now prosecute a misdemeanor for failure to have a proper hemp certificate,” the leaders say.
And, the leaders say, lab tests aren’t the only way to prove marijuana possession.
“Criminal cases can be proven either through lab tests or through other circumstantial evidence. Furthermore, even before the passage of H.B. 1325, companies and labs were already developing THC concentration tests. As more companies enter the testing marketplace, the costs of the tests will certainly decline. Finally, even if a lab test were needed, they are not as costly as some initial reporting indicated.”
Defense attorneys across the state, however, are saying that because laboratory tests currently in use cannot differentiate between the two plants, a prosecutor can’t necessarily prove that evidence presented in a pot possession case actually is marijuana and not just hemp.
Right now, we're studying what the impact might be to determine what course of action we will take," Bell County District Attorney Henry Garza said earlier.
"I take a dim view of dope and always have, been fighting it 46 years, but we will follow the law," McLennan County Sheriff Parnell McNamara said.
"We'll handle those cases on an individual basis," Bell County Chief Sheriff's Deputy Chuck Cox said.
"What's going to have to happen is the state is going to have to modify the way we test marijuana to comply with the new regulation," he said.
In McLennan County, where the District Attorney's Office handles both felonies and misdemeanors, Needham says there's a question about how to proceed.
"We don't know what we're going to do right now or how we're going to handle it at this point," because, "right now we can't prove our cases beyond a reasonable doubt."
Needham said there are about 30 laboratories in the state that currently perform tests to identify marijuana and for each one to upgrade their capabilities to identify the 0.3-percent mark would cost some $500,000 each, so Texas would have to spend $15 million or so to bring labs up to date.