New state law could compromise marijuana prosecutions

Published: Jul. 10, 2019 at 6:23 PM CDT
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A new state law that legalizes hemp for production, transport and use may have a dramatic and unintended effect on prosecution of misdemeanor marijuana cases statewide.

Texas 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.

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, Needham, said.

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.”

Defense attorneys across the state are now saying that because laboratory tests currently in use cannot differentiate between the two plants, a prosecutor can’t prove that evidence presented in a pot possession case actually is marijuana and not just hemp.

“It would be absolutely irresponsible for any attorney to agree to a plea bargain on a misdemeanor marijuana case. Make them (the state) prove it,” and right now, they can’t,” one Central Texas defense attorney, a former prosecutor, said

In fact, one attorney pointed out “possession of small amounts of marijuana in Texas today is de-facto legal, but de-jure illegal,” meaning it’s illegal, but the state can’t prove it, and sometimes the state doesn’t even try.

So what’s a prosecutor to do?

Prosecutors and police agencies in some places have said in recent days they’ll just not prosecute cases that involve possession of small amounts of marijuana, among them Harris, Dallas, Tarrant, El Paso and Bexar counties.

Those same agencies in Central Texas all say right now they’re just trying to figure out what to do.

“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.

“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.

While the law could affect Garza’s office, misdemeanors in Bell County are prosecuted by the county attorney’s office.

Jim Nichols is county attorney.

KWTX tried several times to contact Nichols, but he wasn’t available.

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.”

”Well, we didn’t think about that”

State Rep. Dr. J.D. Sheffield, R-Gatesville, said when HB 1325 came up for a vote there was no discussion about the hemp vs. marijuana issue and most House members were not aware there was a problem.

“It’s one of those things that we did and now we’re looking back saying ‘Well, we didn’t think about that,’” Sheffield said.

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.

The current issue actually is easy to handle, Coryell County attorney Brandon Belt said.

“We’re going to take those cases to court and if the defendant says we haven’t proved the evidence we have is actually marijuana, then we’ll send it off to a lab that can define THC and get it tested, if we think the case is worth it.”

But is it worth it?

“Do we really want to bust that 20-year-old kid because we find a couple of joints in his pocket,” Waco defense attorney Vic Feazell asked.

“Is that worth it?”

Feazell, a former district attorney, pointed out passage of HB 1325 may have been an accident.

“They didn’t realize what they were doing when they did it,” Feazell said, “and now it’s time for the state to put up or shut up.”

He suggested defense attorneys who have pending misdemeanor marijuana cases should immediately set them for trial because “all of those pending cases right now can’t be proved beyond a reasonable doubt.”

On the issue of legalization, Feazell said “I think it’s wonderful that it happened.”

Feazell and his wife chose to live a natural lifestyle several years ago and hemp, and marijuana, have extreme benefits to health, he said.

“We see CBD products surging right now because they are of such benefit to people who are in pain or suffering other issues and CBD can help.

“But there are so many benefits from marijuana as well that are diminished because those products must be less than 0.3 percent THC and it’s the THC that is the switch that makes everything else work better.”

Feazell, and several others who were interviewed for this story, said they believe the handwriting is on the wall and in a soon coming legislative session, possession of marijuana in small amounts in Texas will no longer be criminal.

Sheffield agreed, saying decriminalization of small amounts of marijuana makes sense overall.

“If we’re talking about a person who has a small amount of marijuana for Personal use, it makes little sense to take a police officer off the street for the rest of the day to deal with something that could have been dealt with by a ticket and an appearance in court.”

Sheffield said he believes in the next few sessions Texas will decriminalize possession of marijuana in small amounts.